Hatfield v. Commonwealth

• Decision Date: 10 March 1900
• Citation: Hatfield v. Commonwealth, 55 S.W. 679 (Ky. Ct. App. 1900)
• Parties: HATFIELD v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

55 S.W. 679

HATFIELD v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

March 10, 1900

Appeal from circuit court, Floyd county.

"Not to be officially reported."

Johnson Hatfield was convicted of murder, and he appeals. Affirmed.

F. M Dailey, for appellant.

Clifton J. Pratt, for the Commonwealth.

BURNAM J.

The appellant, in connection with other defendants, was indicted by the grand jury of Pike county on the 24th day of August 1888, for the murder of Alifair McCoy. He was also charged in the same indictment with being present, and having aided abetted, and encouraged his co-defendants to kill and murder her, and that they had previously conspired with each other to do so. He was arraigned for trial for the first time at the September term, 1898, more than 10 years after the finding of the indictment, and at the same term, upon his motion, a change of venue was granted from the Pike circuit court to the Floyd circuit court, and all of the witnesses were recognized to appear in the Floyd circuit court on the first day of its next January term. During the interval between the adjournment of the Pike circuit court and the convening of the Floyd circuit court an order was entered, pursuant to section 153 of the Criminal Code, authorizing the defendant to take the depositions of a number of witnesses who resided in Mingo county, W. Va., to be read as testimony in his behalf. Pursuant to this order, on the 19th day of September, 1898, the depositions of Anderson Hatfield, the father of appellant, Bob Hatfield, Elias Hatfield, and Troy Hatfield, were taken, and each was read to the jury by the defendant, but defendant failed to procure the depositions of a number of other persons who were named in the order. When the case was called for trial, appellant asked a continuance on account of his failure to procure the depositions of the remaining Virginia witnesses, and also on account of the absence of his sisters Mrs. Nancy Bell Vance and Mary Simkins, by whom he expected to prove that he was more than nine miles away from the place where the killing occurred, suffering from a gunshot wound in his shoulder, which had been inflicted by his brother by the accidental discharge of a gun while rabbit hunting, 10 or 12 days before, and Samuel L. King, by whom he expected to prove that, after McCoy's house was burned and his daughter killed, he (McCoy) told him that he had shot Hence Chambers at his house on the night of the killing, and not the defendant. The motion for continuance was overruled, but the defendant was permitted to read his affidavit setting forth the facts as to the testimony of Mrs. Vance, Simkins, and King as their depositions, and this is the first error complained of. The only defense relied upon in this case is an alibi, and the only facts which the absent witnesses would have proved were cumulative of those testified to by the witnesses whose depositions were procured, and we think that appellant received the full benefit of all that could have been testified to by his absent witnesses who resided in this state by being permitted to read, as their depositions, his very elaborate affidavit filed upon his motion for a continuance, and it was properly overruled.

After a number of the witnesses for the commonwealth had been examined, appellant made another motion to set aside the swearings of the jury, and continue the case, upon the ground that two attorneys, whom he alleged he had employed to defend him, withdrew from the case, and refused to comply with their agreement to represent him, leaving him but one attorney to conduct his defense. The court had the withdrawing attorneys brought into court, and interrogated them as to their refusal to comply with their professional engagement made with defendant, and, in explanation of their conduct, they stated to the court that their employment was conditioned upon the payment to them of their fees in advance, which undertaking appellant had failed to comply with, and that they were therefore under no obligation to render the services contracted for. These statements of the attorneys were not denied, and appellant, therefore, had no right to rely upon their professional services in the trial. Besides, after their withdrawal, he had the benefit of the services of a thoroughly competent and experienced lawyer, who seems to have conducted the case and presented the defense as well as the law and facts permitted. And we are of the opinion that the court did not err in refusing to set aside the swearing of the jury, and continue the case on that ground.

The next ground of error relied upon is that...