Kennedy v. The Commonwealth
| Decision Date | 09 April 1880 |
| Citation | 78 Ky. 447 |
| Parties | Kennedy v. The Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM ROCKCASTLE CIRCUIT COURT.
R. & W. O. BRADLEY, WELCH & SAUFLEY, AND T. P. HILL FOR APPELLANT.
C. A. HARDIN AND P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
This is the second appeal in this case. The opinion in the former appeal may be found in 14 Bush, page 340.
On the return of the cause to the Garrard circuit court, which is in the 8th district, the appellant moved, upon proper petition and affidavits, for a change of venue, and also objected to all the adjoining counties in that district, but did not object to Rockcastle, an adjoining county in 15th district. By consent of the appellant and his counsel and the attorney for the Commonwealth, the venue was ordered to be changed to Rockcastle, and it was further agreed, as shown by the record, that Hon. J. C. Wickliffe, judge of the 7th district, who presided at the former trial under a commission from the Governor appointing him to try the case, should preside at the trial.
At the last January term of the Rockcastle circuit court Judge Wickliffe did not attend. Hon. W. H. Randall, the judge of that district, was present, holding the court, and when this case was called the appellant filed the necessary affidavits to unseat the judge, and the Governor commissioned Hon. S. E. DeHaven to try the case. A trial was had, which resulted in a verdict and judgment convicting the appellant of the crime of manslaughter, and he has again appealed, and urges many grounds for a reversal of the judgment.
His first point is, that the order changing the venue is void. This contention is based mainly on the ground that the court had no power to send the case to a county outside of the district, there being one or more in the district not objected to, and that the consent of the appellant to have the case sent to Rockcastle does not bind him, and did not authorize the change that was made.
The statute provides that when grounds for a change of venue are made out the court shall "order the trial to be had in some other adjacent county to which there is no valid objection," and "if objections are taken and sustained to all the adjoining counties, then the change to be made to the nearest county to which there is no valid objection, giving preference to counties of the same judicial district. (Sec. 1, art. 4, chap. 12, Gen. Stat.)
These provisions construed together seem to contemplate that a change of venue shall always be made to an adjoining county, unless objection be taken to all of such counties, and it is only when there is no adjoining county to which objection has not been taken and sustained that the change is "to be made to the nearest county to which there is no valid objection." As long as there is one or more adjoining counties in the district to which objection has not been sustained, preference should be given to such counties, and when there is no adjoining county either in the district or out of it to which objection has not been taken and sustained, preference should be given to counties in the district.
We are therefore of the opinion, that all the adjoining counties in the district having been objected to and the objection sustained, it was proper to send the case to an adjoining county in another district, and Rockcastle being such a county, the order changing the venue to that county was proper, independently of appellant's consent, and we need not express any opinion as to whether if it were otherwise he would be bound by his agreement.
We do not wish, however, that what we have said in reference to the statute regulating changes of venue shall be understood as an intimation that if the change had been made to a county not adjoining that in which the prosecution was commenced, that it would have affected the jurisdiction of the court to which the change was made. The court ordering the change has jurisdiction to decide to what county the change shall be made, and an error in that respect would not render invalid the proceedings of the court to which the change was made.
Judge Wickliffe was commissioned to try the case in Garrard, and had no power to follow it to Rockcastle, in another circuit; Judge Randall therefore properly presided until he was unseated by the affidavits filed for that purpose, and even afterwards, in the absence of the special judge, it was proper that he should make all necessary and proper orders to have the case in readiness for a trial when the special judge should be in attendance.
After Judge Randall was sworn off the bench, the attorney for the Commonwealth and the appellant and his attorneys agreed that, in consequence of the employment in the case of the attorneys in attendance on the court, a judge to try the case could not be procured by election, and that the clerk should certify that fact to the Governor, and that agreement was entered on the record.
What purports to be the certificate of the clerk is copied into the transcript, and it is claimed that it is so defective that it did not authorize the Governor to commission a special judge.
There are two sufficient answers to this objection —
First. The certificate is not properly a part of this record. The order of the court, which is a part of the record, is regular, and shows that the clerk was ordered to certify that a judge could not be obtained by election.
Second. The Governor has acted upon the certificate, and we cannot go behind his commission; the record showing a case proper for the exercise of the power conferred upon him by the statute.
The...
To continue reading
Request your trial