Hannah v. Commonwealth
| Decision Date | 01 March 1932 |
| Citation | 242 Ky. 220 |
| Parties | Hannah v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — Trial court's discretion in refusing change of venue will not be disturbed unless abused.
2. Criminal Law. — Refusing change of venue, asked for on ground of unfavorable atmosphere and prejudice precluding fair trial, held not abuse of trial court's discretion.
3. Criminal Law. — Refusing continuance held not abuse of trial court's discretion, under record, notwithstanding accused was able to employ counsel only two days before case was called for trial.
Record disclosed that the refusal to grant a continuance did not deprive accused of the evidence of any witnesses who were present or who had any actual knowledge of what occurred at the scene of the robbery upon which the charge against accused was based; that accused introduced a number of witnesses as to his good character and reputation prior to the time of the robbery; that he was represented in the lower court and on appeal by able counsel, who did all they possibly could for accused under the circumstances.
4. Indictment and Information. — Indictment charging both assault with offensive weapon with intent to rob and unlawful demand for money would be good, since charging only single offense (Ky. Stats., sec. 1160).
5. Indictment and Information. — Indictment charging either assault with offensive weapon with intent to rob or unlawful demand for money would be good (Ky. Stats., 1160).
6. Criminal Law. — Where indictment charged only assault with offensive weapon with intent to rob, instruction covering unlawful demand for money, while technically incorrect, was not reversible error, under facts (Ky. Stats., sec. 1160).
While instruction should have followed the language of the indictment in describing the manner in which accused was charged to have violated Ky. Stats., sec. 1160, instead of embodying in substance all the language of the statute describing the ways in which the offense may be committed, it was not reversible error, since accused's own admissions and other evidence as to his guilt of the offense as charged showed that the result would have been the same had the instruction been correctly given.
Appeal from Lawrence Circuit Court.
WAUGH & HOWERTON and A.O. CARTER for appellant.
J.W. CAMMACK, Attorney General, and GEO. H. MITCHELL, Assistant Attorney General, for appellee.
Affirming.
Tad Hannah, Roscoe Derefield, Harlan Derefield, Ed Clarke, and Kenneth Meade were jointly indicted in the Lawrence circuit court for the crime of assault with offensive weapons with intent to commit robbery. On separate trial, Hannah was found guilty and his punishment fixed at thirteen years' imprisonment. Motion and grounds for a new trial having been overruled, he is here on appeal.
As grounds for a reversal of the lower court's judgment, appellant relies on three alleged errors, viz.: (1) Error in overruling motion for change of venue; (2) error in refusing a continuance; (3) error in instructions given to the jury.
While no question is raised as to the competency of evidence, a brief summary thereof is necessary to an intelligent discussion of the questions involved.
Two days before the robbery, appellant and Meade left their home in Ashland and went to Ohio. There they, together with their three codefendants, embarked on an automobile trip, ostensibly to seek work. After two days of wandering in Ohio, West Virginia, and Kentucky, they landed on Blaine creek in a remote section of Lawrence county, where they claimed to have gone to seek employment on a pipe line that was being laid in that vicinity. Their efforts, if any were made, were of no avail. On their return from the Blaine section to Louisa, they passed the store and filling station of R.J. Gussler, and had continued on for about a mile when it occurred to them that their supply of gasoline should be replenished. Roscoe Derefield and Ed Clarke were requested to get out and wait on the roadside while the other three returned for the gasoline. When they arrived at the station, Mr. Gussler appeared to wait on them and they asked him to fill the tank. Evidently there was a goodly supply already in the tank, as he testified that he only put five gallons in it. He was then asked if he had anything to eat and he informed them that he had some canned goods. Harlan, Derefield and Hannah followed him into the store. The evidence about which there is no conflict shows that as Mr. Gussler went around the counter to the canned goods section, he was commanded to "stick up your hands." His tardiness in complying with the command caused it to be repeated with considerable emphasis. Hannah went through his pockets and through the cash drawer, which he forced Gussler to open. Gussler was then driven into an adjoining room and forced to unlock and open a dresser drawer from which Derefield took the contents of a pocketbook. A pistol belonging to Gussler's son was taken from where it was hanging on the wall and Gussler's shotgun broken into pieces. The telephone was torn from the wall, Gussler was compelled to crawl under the bed, and several shots were fired into the floor.
As to circumstances about which there is a conflict of evidence Gussler testified that, when he was commanded to throw up his hands, he looked around and both men had pistols pointed at him and that a shot was fired toward him; that Derefield punched him several times with a pistol when he commanded him to hurry; and that Derefield took his son's pistol from the wall. Derefield testified that he pointed his pistol toward Mr. Gussler, and that he took the pistol from the wall, broke the shotgun, fired shots into the floor, and forced Gussler to get under the bed. Hannah admitted that he went through Gussler's pockets and took the money from the cash drawer in the store, but denied that he had a pistol when he went in or that he drew one on Mr. Gussler. He testified that he took the pistol from the wall and did what he did at the command of Derefield because he was frightened. He admitted, however, that he was 35 years of age, while Derefield was a boy about 19 years old. Gussler stated that he did not remember whether Hannah fired any of the shots in the store, but stated that he fired outside, when leaving.
Officers who were notified, met and attempted to stop the automobile in which appellant and his codefendants were riding, but the command to halt was unheeded. Some of the officers testified that as the car sped by a shot was fired from the right of the front seat. The officers returned the fire. One of their shots wounded Hannah in the right hand and others struck the automobile. After a short distance a tire went down and the occupants abandoned the car and ran. Hannah and one of his companions were apprehended in a short distance and the others were later arrested. The pistol taken from Gussler's home was found on Hannah. It was in the same condition as when taken, except that one side of the handle was missing, and there was an empty shell in one chamber. We assume that this evidence was introduced as tending to show that Hannah fired this pistol at the officers and that the bullet which inflicted the wound in his right hand tore the side off the handle of the pistol.
In the petition for a change of venue it is avowed that the prosecuting witness is a man of wide acquaintance and influence in Lawrence county; that newspapers in Louisa as well as the Ashland Independent, all newspapers of wide circulation in the county, carried accounts of the robbery and the subsequent running fight with the officers which were unfavorable to appellant; that when Harlan Derefield entered a plea of guilty and was placed on trial, the commonwealth attorney made a statement to the jury in the presence of other jurors and a large audience in the courtroom, giving a lurid and exaggerated description of the circumstances of the case; that by reason of these things an unfavorable atmosphere and a prejudice was created against appellant that would preclude him having a fair trial in that county.
Affidavits, identical in form...
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