Hutsell v. Commonwealth

• Decision Date: 22 June 1928
• Citation: 9 S.W.2d 132,225 Ky. 492
• Parties: HUTSELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

9 S.W.2d 132

225 Ky. 492

HUTSELL v. COMMONWEALTH.

Court of Appeals of Kentucky

June 22, 1928

Rehearing Denied Oct. 5, 1928.

Appeal from Circuit Court, Oldham County.

Ivan Hutsell was convicted of murder, and he appeals. Affirmed.

Eugene Mosley, of Bedford, for appellant.

J. W Cammack, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for the Commonwealth.

WHEELER C.

On Sunday afternoon, May 29, 1927, the appellant, Ivan Hutsell shot and killed John Ditchler and his wife, Jesse Ditchler. He was indicted for the murder of Jesse Ditchler at a special term of the Oldham circuit court on July 5, 1927, tried on July 18th, found guilty, and his punishment fixed at death. He appeals.

The Ditchlers lived in Indiana on the Ohio river opposite Westport, Ky. The appellant lived at Westport on the Kentucky side of the river. It appears that bad feeling existed between the appellant and the Ditchlers. At one time the appellant and John Ditchler had a fight, and at another time the appellant, according to his testimony, was driven from the premises of Jesse Ditchler, where he had gone for the purpose of removing his furniture from a tenant house he had occupied when Jesse Ditchler cursed him and shot at him.

Later appellant was prosecuted in the courts of Indiana by Jesse Ditchler and her husband, resulting in a conviction and sentence to the penal farm in Indiana, where he served until January, 1927. He remained for a short time in Indiana, and then moved to Westport, Ky. On the day of the homicide and just before its occurrence, some one from the Kentucky side called to Lon Smith on the Indiana side of the Ohio river to bring over some fish. The Ditchlers operated a motorboat on the Ohio river, and, on the call being made for the fish Smith, accompanied by a Miss Conn (sister-in-law of the appellant), John Ditchler, and Jesse Ditchler, came over in a motorboat to the Kentucky side. It is testified that the appellant is the one that called Smith, but he denies it. He admits, however, that before the arrival of the motorboat, he left the landing and went up to his home, armed himself with a single barrel breech-loading shotgun, and came back to the landing, where he awaited the arrival of the boat. The boat was operated by John Ditchler, and, when it landed, Miss Conn and Mr. Smith got out of the boat, both the Ditchlers remaining in it. The appellant at close range shot and killed John Ditchler in the boat. He reloaded his gun, shot and killed Jesse Ditchler, then reloaded it and fired into her dead body. He then climbed into the boat where his victims lay, and using the gun as a club, struck the decedent, Jesse Ditchler, on the head, crushing her skull. He then went to a telephone station, called up the sheriff, and told him "he had got him a man" and to come and get him. The appellant was arrested by the sheriff on the evening of the homicide, placed in the Oldham county jail, where he was confined until his trial and conviction, after which he was removed to Eddyville.

The circuit judge called a special session of the Oldham circuit court on July 5, 1927, for the purpose of investigating the homicide, and impaneled a grand jury, which returned the indictment against appellant. The case was then called for trial, but, at the suggestion of appellant's counsel, was postponed until July 12th. On that date the case was again called for trial, but was again postponed, as requested by counsel for appellant, because of his inability to be present at the trial because of serious sickness in his family, and set for trial on July 18th. The trial was then had with the result as stated.

In his motion and grounds for new trial the appellant made several complaints, but in his brief on this appeal all are abandoned, except the following: (1) That the court should have granted change of venue from Oldham county; (2) that the court should have continued the case to a later date to give the defendant more time to prepare his defense; (3) that the court should have instructed the jury on "momentary insanity"; (4) that the evidence is not sufficient to authorize the verdict or judgment thereon.

1. The court is authorized to grant a change of venue, if it appears that a fair trial cannot be had by the accused in that county. The appellant filed his motion for a change of venue, accompanied by the two affidavits as the law required. The motion was set for trial, and the testimony heard was reported by a stenographer and appears in the record. Twelve or more witnesses testified, but only two or three expressed an opinion that the defendant could not obtain a fair trial in Oldham county, while the others were of the opinion that a fair trial could be had by the defendant. The court overruled the motion for a change of venue, which ruling was fully justified by the evidence. The burden was on the applicant to show that he cannot reasonably obtain a fair trial. The trial judge heard and saw the witnesses, doubtless knew them personally, and was in a better position to give proper weight to the testimony than any other tribunal, not having like opportunities. It is well settled that rulings of the trial judge on an application for a change of venue will not be disturbed, unless an abuse of discretion has been shown, and we are satisfied in this case that the trial court properly disposed of the motion. Stroud v. Commonwealth, 160 Ky. 503, 169 S.W. 1021; Mansfield v. Commonwealth, 163 Ky. 488, 174 S.W. 16; Heck v. Commonwealth, 163 Ky. 518, 174 S.W. 19; Greer v. Commonwealth, 164 Ky. 396, 175 S.W. 665. Also Combs v. Commonwealth, 160 Ky. 386, 169 S.W. 879; Dilger v. Commonwealth, 88 Ky. 550, 11 S.W. 651, 11 Ky. Law Rep. 651; Wilkerson v. Commonwealth, 88 Ky. 29, 9 S.W. 836, 10 Ky. Law Rep. 656, and cases cited therein.

Appellant cites the case of Johnson v. Commonwealth, 107 S.W. 768, 32 Ky. Law Rep. 1117, but it will be seen that defendant there was threatened with mob violence, that a secret order in the county was threatening violence to the defendant, and, further, that the decedent had a large relation in the county, many of whom were indignant and wrought up over the killing. Under the circumstances there shown, this court concluded that a change of venue should have been granted the defendant. But no such state of case existed here. The decedent lived in another state and had no relations in the state of Kentucky. No threats of mob violence were shown and no indications of any feeling whatever against the accused. The petition which was circulated and signed by residents of the county merely requested a special term of court that proper investigation and a trial might be had. This was not prejudicial to the rights of the defendant, but indicated only that the signers were desirous that a lawful investigation and legal trial should be had. If the feeling had run high, and the people worked up to a state of unreasonable excitement, leading to a demand for the life of the defendant without trial, a different state of case would be presented. We are likewise cited to the case of Anderson v. Commonwealth (Ky.) 117 S.W. 364, where an officer of a bank was tried, and it was shown that another bank had recently failed, affecting the finances of a large proportion of the resident jurors in the county, the stockholders being made up largely of the farmers throughout the county, and under such state of case, this court held that it was proper to grant a change of venue. The facts are in no wise similar to those shown in this case. The court did not err in overruling appellant's motion for change of venue.

2. Appellant insists that the trial court should have granted him a continuance to give him more time to prepare his defense. It will be observed that the homicide occurred on May 29, 1927, and the trial did not occur until July 18th; the witnesses were few and none of them lived any great distance from La Grange, the county seat. All the witnesses having knowledge of the killing, except a Miss Conn (sister-in-law of defendant), testified, and it is nowhere stated that she would have testified differently if she had been present. We are not furnished with any material facts that appellant could establish if given further time, and we are confronted with the testimony of the appellant himself, who gives no excuse for the killing. The testimony of the appellant, hereafter mentioned, illustrates clearly that the appellant had ample time to assemble whatever testimony he had, and the court did not err in overruling the motion for continuance. McQueen v. Commonwealth, 224 Ky. 89, 5 S.W.2d 487; and cases therein cited.

3. We have carefully examined the instructions and find that they present the whole law of the case. They were more favorable to the defendant than the facts warranted.

The only evidence offered by the defendant that could serve as any basis for an instruction on "momentary insanity," as contended for, is his own testimony. He described the state of feeling existing between himself and the deceased Jesse Ditchler, and her husband, John Ditchler; stated that he had, prior to the killing, received threats of their intention to do him bodily harm. In speaking of the deceased and her husband coming across the river from the Indiana side to the Kentucky shore where the killing occurred, he testified as follows:

"(60) At the time you saw this boat coming across the river, did you or not recall the statements that had been conveyed to you in the way of threats of these parties against your life? A. Yes, sir; it all come to my mind.

(61) What did you do then? A. Well, I went home and got my gun.

(62) Did you believe at the time that your life was in danger? A. Well, I did; yes, sir.

(63) Now, what happened after they had practically...