Johnson v. The Commonwealth

• Decision Date: 15 May 1884
• Citation: 82 Ky. 116
• Parties: Johnson v. The Commonwealth.
• Court: Kentucky Court of Appeals

82 Ky. 116

Johnson v. The Commonwealth.

Court of Appeals of Kentucky.

May 15, 1884.

APPEAL FROM LOGAN CIRCUIT COURT.

T. A. FRAZER, THEO. B. BLAKEY, AND E. W. HINES FOR APPELLANT.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

Appellant having been indicted at the February term, 1882, of the Logan circuit court for the murder of George Richards, was at the February term, 1884, tried and convicted, and his punishment fixed at death.

The first error complained of that it is necessary to notice is the order of court overruling his application for a change of venue.

In his petition, verified by affidavit, he stated that on account of the prejudice of the people of Logan county against him he could not have a fair and impartial trial there. Accompanying his petition were filed affidavits of nine persons, not of kin to nor of counsel for the defendant, including the judge of the county court and the county attorney, in which they stated they were acquainted with the state of public opinion in that county, and believed the statements of appellant's petition for such change of venue were true.

The judge of the county court, in his affidavit, stated that he was impressed with the necessity of removing appellant from the jail of Logan county, in order to prevent violence being done him by a mob, by the feeling then prevailing in that community that such violence was liable to occur. He stated that he had no evidence of the intention of any one to commit such violence, but there was an intangible and indefinite feeling of danger pervading the community, and he assumed the responsibility of removing appellant on that account.

In his affidavit the county attorney stated that he had heard appellant's case discussed by men from all parts of the county, and was satisfied he could not have a fair trial there owing to the prejudice against him. He stated that the principal ground for his belief was the fact that about two months previous to the term of court at which appellant was tried and convicted, a mob took two negroes from the jail and hung them, and it was complained throughout the county that the mob did not complete its work, and that it ought to have hung appellant, who was in jail at the time.

Previous to the amendment of the General Statutes, the defendant in a criminal prosecution was entitled to a change of venue as a matter of right from the county in which the crime was alleged to have been committed to an adjoining county, upon his petition, verified by his affidavit and the affidavit of two credible persons acquainted with the state of public opinion, to the effect that he could not have a fair trial in the county where the prosecution was pending. Michey v. Commonwealth, 13 Bush, 237.

But by an act approved April 1, 1880, subsec. 2 of sec. 1, art. 4, chap. 12, has been amended by adding the following, viz: "And the court shall on said motion 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."

In this case, as he was authorized to do by the act just quoted, the Commonwealth's attorney called and examined seven (7) witnesses, who stated, in substance, that they were acquainted with the state of public sentiment in different portions of the county in reference to appellant, and knew of no reason why he could not have a fair and impartial trial in that county in the ordinary and...