Heck v. Commonwealth

• Decision Date: 12 March 1915
• Citation: 163 Ky. 518,174 S.W. 19
• Parties: HECK v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

174 S.W. 19

163 Ky. 518

HECK v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 12, 1915

Appeal from Circuit Court, Daviess County.

Charles Heck was convicted of willful murder, and he appeals. Reversed and remanded.

Louis I. Igleheart, of Owensboro, for appellant.

James Garnett, Atty. Gen., and Robt. T. Caldwell, Asst. Atty. Gen for the Commonwealth.

HURT J.

The appellant, Charles Heck, was indicted in the Daviess circuit court, charged with the willful murder of one George Hester and upon his trial he was found guilty of murder by the jury and the penalty fixed at imprisonment for life, and the court thereupon entered a judgment accordingly.

The grounds and motion of appellant for a new trial being overruled, he has appealed to this court, and seeks a reversal of the judgment of conviction against him for the following reasons: First, because the court erred in refusing to grant him a change of venue from the county of Daviess for the trial of his case to some other county; second, because the court erred in permitting five of the jurors, after they had been qualified and accepted, to separate, and go without being in charge of an officer until the next day; and, third, because the court erred in instructing the jury, and in failing to instruct the jury upon the entire law of the case.

The statute which governs the proceedings in a criminal case, relative to a change of venue, provides that, upon an application made by a defendant for a change of venue, the court will hear all witnesses that may be produced by either party, and from the evidence determine whether or not the applicant is entitled to a change of venue. It provides that one indicted for a crime may have a change of venue, if it appears that he cannot have a fair trial in the county where the prosecution is pending.

The right to a change of venue is only bestowed by the statute, and the Legislature has authority to provide for the extent and manner of its exercise. In the case at bar evidence was heard upon the motion, and we presume all was heard that either party desired to offer. The judge of the trial court, in deciding upon such a motion, has a sound discretion, and has better opportunity of properly estimating the conditions which exist in the community where he is then engaged in holding court, a better acquaintance with the witnesses, and is able to know better what weight to give their evidence, than we can possibly know.

It has therefore been held that, while this court has authority to revise, and, if need be, reverse, the judgment of the trial judge, on a motion for a change of venue, it is not done, nor either ought it be done, except in instances where this court is satisfied that the trial court has abused its discretion in its decision upon the motion. Howard v. Comth., 26 S.W. 1, 15 Ky. Law Rep. 874; Crockett v. Comth., 100 Ky. 382, 38 S.W. 674, 18 Ky. Law Rep. 835.

Considering the evidence heard upon the motion by the trial court, we are not able to say that its discretion in the matter was abused in refusing the application.

As to the complaint that, after the jury had been accepted, it was permitted to separate, and not kept together in charge of an officer, it appears that the court proceeded to impanel the jury on the first day of the trial, but did not have time in which to complete the impaneling of the jury upon that day, but that five jurors were accepted by both sides, and, when the court adjourned for the day, until the next day, the five jurors were not kept together in charge of an officer, but were permitted to separate and go to their homes. On the next day the jury was completed, and the five jurors who were accepted on the day before composed a portion of the panel.

Section 244 of the Criminal Code provides that, on the trial of offenses which are or may be punished capitally, after jurors are accepted, they shall not be permitted to separate, but shall be kept together in charge of the proper officer. It appears, however, that the defendant did not make any objection at the time to permitting the five jurors accepted to separate and go, without being in custody of an officer; neither did he after that time during the trial make any objection upon such subject; neither did he present the matter to the trial court in his grounds or motion for a new trial. It has been held by this court that the accused may waive his right to object to permitting the jurors to separate, and it has further been held that an objection made to the separation of the jury for the first time in a motion for a new trial will not be considered. The objection should have been made at the time. Wilkerson v. Commonwealth, 88 Ky. 29, 9 S.W. 836, 10 Ky. Law Rep. 656; Vinegar v. Commonwealth, 104 Ky. 106, 46 S.W. 510, 20 Ky. Law Rep. 412; Wade v. Commonwealth, 106 Ky. 321, 50 S.W. 271, 20 Ky. Law Rep. 1885. The separation complained of having taken place in the presence of the appellant, and without objection from him, he could not thereafter complain of it, and, not having presented it at any time to the court, it is presumed that he waived his right of objection on that account.

The appellant complains of the instruction defining the crime of "voluntary manslaughter," and also the instruction given by the court upon the right of the appellant to defend himself. The complaint of the instruction defining the crime of "voluntary manslaughter" is that, under that instruction, the...