Jett v. Commonwealth

• Decision Date: 25 March 1905
• Citation: 85 S.W. 1179,139 Ky. 794
• Parties: JETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

85 S.W. 1179

139 Ky. 794

JETT v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 25, 1905

Appeal from Circuit Court, Harrison County.

"Not to be officially reported."

Curtis Jett was convicted of murder, and he appeals. Reversed.

Hazelrigg Chenault & Hazelrigg and J. I. Blanton, for appellant.

A. F Byrd and N. B. Hays, for the Commonwealth.

BARKER J.

Curtis Jett was indicted by the grand jury of Breathitt county for the murder of James Cockrill. This indictment was returned on the 30th day of May, 1903, at a special term of the court called by the judge in vacation by posting notices on the courthouse door, in accordance with the provision of section 964 of the Kentucky Statutes of 1903. At the same term the grand jury indicted appellant and one Thomas White, charging them jointly with the murder of J. B. Marcum. Subsequently the commonwealth's attorney filed his affidavit, stating substantially, that, in his opinion, there existed such a state of lawlessness in Breathitt county that the officers whose duty it was to summon witnesses, select jurors, and have charge of the trial of the case would be prevented from discharging their duty, and the jurors so selected would be deterred from rendering an impartial verdict. Based upon this affidavit, he moved the court to transfer the case for trial to another county, outside of the Twenty-Third Judicial District. To this motion the defendant objected, but the court announced that the motion would be sustained, and the venue of the prosecution changed to the county of Morgan, whereupon the commonwealth's attorney, after consultation with his associates in the prosecution, asked to be allowed to withdraw the motion for a change of venue, which the court permitted to be done, over the objection of the defendant, and the order was never entered upon the record. Afterwards a trial was had of the case of The Commonwealth v. Jett and White for the murder of J. B. Marcum, which resulted in a mistrial--the jury being unable to agree upon a verdict--whereupon the commonwealth's attorney renewed his motion for a change of venue in this case; and the court on the 19th day of June, 1903, entered an order changing the venue of trial from Breathitt to Harrison county. A similar order was made in the case of The Commonwealth v. Jett and White for the murder of Marcum. A trial was had in the latter case in the Harrison circuit court, which resulted on the 15th day of August, 1903, in a verdict of guilty against the defendants, and their punishment being fixed at confinement in the penitentiary for their lives. On the 8th day of September, 1903, the appellant, upon the calling of this case in the Harrison circuit court, filed a special demurrer to the jurisdiction of the court, and a motion to quash the indictment, both of which were overruled. He then filed an affidavit, and moved the court to continue the case for trial, which was also overruled, and the case was then set for the seventh day of the term for trial; being a week later than the day on which the motion for a continuance was overruled. After overruling this motion, the court entered an order offering the accused a special venire, to be selected either from Nicholas, Robertson, or Pendleton counties, if he so desired. This was not accepted by the defendant. After the motion for a continuance was overruled, appellant moved the court for a change of venue to another county, which was overruled. The trial resulted in appellant's conviction, and his punishment being fixed at death, of which he complains on this appeal.

The motion to quash the indictment was based upon a statement contained in the affidavit of the appellant that the indictment against him was returned by the grand jury at a special term of the Breathitt circuit court, which had been called by the judge by posting notices on the courthouse door, and the fact that no order for the special term had been made upon the order books of the court at the last regular term of the court. And it is now urged that "a special term of court to hear, determine, or try criminal or penal cases can only be called by the court or ordered by the court when in session, and that the judge of said court had no authority to call a special term in vacation; that the regular term of the Breathitt circuit court, fixed by law and order of court, begins on the first Mondays in March, June and November in each year, and continues for three weeks; and that at no special term of the Breathitt circuit court was an order made by said court calling a special term of the court for the purpose of returning indictments or of hearing or determining criminal or penal cases." This question arose in the case of Thomas White v. Commonwealth, 85 S.W. 753, decided by this court on the 17th day of March, 1905, as did also the question of the jurisdiction of the Harrison circuit court, based upon the claim that, after the commonwealth's attorney made the first motion for a change of venue from Breathitt county, which he subsequently withdrew by leave of court, this exhausted his right to make further application, and the action of the court in granting the second motion was void, under the provisions of section 1118, Ky. St. 1903. As the indictments in the case of White v. Commonwealth and that at bar were returned by the same grand jury, and the procedure, up to the time they were filed in the clerk's office of the Harrison circuit court by an order changing the venue, was identical, it is unnecessary here to do more than refer to the opinion of the court...