Hargis v. Commonwealth

• Decision Date: 01 December 1909
• Citation: 135 Ky. 578
• Parties: Hargis v. Commonwealth.
• Court: Kentucky Court of Appeals

135 Ky. 578

Hargis v. Commonwealth.

Court of Appeals of Kentucky.

December 1, 1909.

Appeal from Estill Circuit Court.

J. P. ADAMS, Circuit Judge.

Defendant convicted and appeals. — Affirmed.

COPYRIGHT MATERIAL OMITTED

W. O. BRADLEY attorney for appellant.

W. A. YOUNG, D. B. REDWINE, J. J. C. BACH, SAM H. KASH and THOS. L. COPE of counsel.

COPYRIGHT MATERIAL OMITTED

Petition for re-hearing by W. O. BRADLEY and D. B. REDWINE for appellant.

JAMES BREATHITT, Attorney General, T. B. BLAKEY, Assistant Attorney General, for Commonwealth.

OPINION OF THE COURT BY JUDGE HOBSON — Affirming.

Beach Hargis shot and killed his father, James Hargis. He was indicted for murder, and on a trial before a jury was found guilty as charged; his punishment being fixed at confinement in the penitentiary for life. The court entered judgment on the verdict, and he appeals.

The first question arising on the appeal is in regard to the refusal of the regular circuit judge to vacate the bench. The affidavit filed by the defendant in support of his motion that the regular judge should retire from the bench, and that a special judge should be appointed, is as follows: "The defendant and affiant, Beach Hargis, states that the judge of this court, Hon. James P. Adams, will not afford him a fair and impartial trial, and will not impartially decide an application for a change of venue in this case, and that said judge is and has been a bitter partisan Republican and has an unkind and prejudicial feeling against the defendant and all the family of the Hargises. He says: That for a number of years preceding this time there existed in this county a deadly enmity and feud between the Hargis family and its friends, he and his father being among the number, and others of the opposing political party, and those whose tendencies and sympathy was with them, he and his father and the Hargis family being Democrats, and those opposing them being Republicans, or persons who sympathized with them. That many indictments were found against his father and others and many trials had, and that at the time of his father's death that enmity and unfriendliness existed. That the Hargises were charged with being responsible for the death of various persons, and a number of said indictments were found against them, charging them with conspiracy in the murder of a number of persons who had been killed.

He says: That the Hargises, especially his father and himself, to the best of his ability, were active Democrats and active workers for that party at the polls. That during the time aforesaid the said Judge Adams was a candidate for commonwealth's attorney, and he and his father actively worked against him. That said Adams being defeated in his race, on the face of the returns, instituted a contest which was very bitter, and in which his father and others were charged with partisanship and illegal conduct. That after this the judicial district was changed by legislative act, and said Adams, having won his contest, became the commonwealth's attorney in the district as it is at present constituted, and prosecuted the Hargises, his father among others, with great activity and bitterness. That whilst said Adams was acting as commonwealth's attorney, Judge Riddell, the circuit judge of this district died. Whereupon the said Adams was appointed judge by the acting Governor in this district. He states that at the time he killed his father said Adams was commonwealth's attorney in this district, and he has discovered, for the first time since the adjournment of the last term of this court, expressed himself with great bitterness against this defendant, saying that he had `camped upon his father's trail,' and now he proposed to `camp upon this defendant's trail and put him where he belonged.' He says that after his trial for bail said Adams said that he would never allow any man bail who had killed his father. For the foregoing reasons, he asks that the said Adams retire from the trial of the case, and another judge be selected or appointed as the case may be, under the statutes."

The indictment was returned on February 18, 1908. At that term the defendant demurred to the indictment. His demurrer was overruled, and he excepted. The trial was set for the thirteenth day of the term. On that day he filed affidavits for a continuance, and later he filed his petition and motion for a change of venue in the action. Before the proof was heard on the motion for a change of venue, he withdrew the motion. The case was continued for the term, and at the special term in August he filed the affidavit above quoted to remove the regular circuit judge from the bench. In the meantime he had made a motion for bail, and this had been heard and overruled by the circuit judge.

The rule is that an objection to the trial judge raises in effect a question of jurisdiction, and the objection, to be available, must be made before an appearance to the merits of the action or the submission of preliminary motions by either party preparatory to a trial. Kentucky Central R. R. Co. v. Kenney, 82 Ky. 154, 6 R. 17; German Insurance Co. v. Landram, 88 Ky. 433, 11 S. W. 367, 592, 10 Ky. Law Rep. 1039; Vance v. Field, 89 Ky. 178, 12 S. W. 190, 11 Ky. Law Rep. 388; Russell v. Russell, 12 S. W. 709, 11 Ky. Law Rep. 547; Bales v. Ferrell, 20 Ky. Law Rep. 1564, 49 S. W. 759. There is nothing in any of the later cases in conflict with the rule laid down in these cases. It is held, however, in all the cases, that matters which have been since discovered may be set up by affidavit. Vance v. Field, 89 Ky. 178, 12 S. W. 190, 11 Ky. Law Rep. 388. The whole of the affidavit above quoted, except the last paragraph, refers to matters which the defendant knew at the preceding term when he entered his general demurrer to the indictment, when he filed his application for a change of venue, and when he made a motion for bail. If, in a criminal case, the defendant were allowed thus to experiment with the circuit judge, and at a succeeding term to swear him from the bench because his experiments had not turned out as he would like them, the door would be open for a practice well calculated to bring the administration of criminal law into disrepute. The rule is a sound one which requires the defendant to make his objection promptly to the circuit judge, and which precludes him from making an objection where he elects to proceed with the case before him without objection. The only part of the affidavit therefore which it is necessary for us to consider is the last paragraph.

The statement attributed to the circuit judge, was made when he was commonwealth's attorney in the district, and when he was not circuit judge, and had no reason to anticipate that he would be. He was speaking as commonwealth's attorney. When he declared that "he had camped upon his father's trail and now proposed to camp upon the defendant's trail and put him where he belonged," he was simply expressing what he would do as commonwealth's attorney. The law made it his duty as commonwealth's attorney to prosecute all infractions of law occurring in his district. It made it his duty to camp upon the trail of all those who were charged with committing felonies, and to put them where they belonged. The words do not necessarily import any personal hostility to the defendant. On the other hand, taking this whole paragraph together, it would simply indicate that the officer had in mind the performance of the duties which the law imposed upon him.

The office of circuit judge is one of great dignity and responsibility. Perhaps the peace and good order of the district more largely depends upon him than any other one person. The people of the district should not be deprived of the services of the regular judge for trivial causes, or on account of declarations made by him which do not necessarily show such a state of mind as would make him unfit to hold the court for the occasion. If what he says is capable of two constructions, then that which is consistent with his good faith should be preferred. The burden is on the defendant to show facts manifesting that the circuit judge will not grant him a fair trial, and he does not do this when he attributes to the circuit judge a statement which may as naturally be construed innocent as otherwise. It does not appear from the affidavit that, while he was commonwealth's attorney, the circuit judge had taken any part in the prosecution. No facts are stated in regard to this.

The only thing alleged is the declaration as commonwealth's attorney as to what he would do. The court must take judicial knowledge that the commonwealth's attorney travels around the circuit with the judge, and that, when he would hear at some point on the circuit that a homicide had been committed, it would not be unnatural that he should say where the facts were, as in this case, unusual, that he would prosecute the case with all his power. We do not think that a declaration by a commonwealth's attorney, when informed that a crime had been committed, that he would prosecute the case as best he could, should disqualify him from thereafter acting as circuit judge, nothing more appearing, for this is nothing more than he should be expected to do; and to say that his declaration that he intended to do what he would naturally be expected to do, it was his duty to do and what disqualifies him from acting as circuit judge, would be in effect to say that the commonwealth's attorney, if afterwards appointed circuit judge, could not properly preside on the trial of any crime which was charged to have been committed in his district while he was commonwealth's attorney.

The proof for the commonwealth on the trial showed in brief these facts: On the night before the homicide, Beach Hargis had gone to his father's store and asked one of the clerks to let him have a pistol. The clerk declined to give him a pistol out of the stock, but told him that his fat...