Layne v. Commonwealth

• Decision Date: 15 October 1937
• Citation: 271 Ky. 418,112 S.W.2d 61
• Parties: LAYNE et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

112 S.W.2d 61

271 Ky. 418

LAYNE et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

October 15, 1937

As Modified on Denial of Rehearing Jan. 21, 1938.

Appeal from Circuit Court, Lawrence County.

Ben Layne and Vernon Castle were convicted of murder, and they appeal.

Affirmed.

Waugh &amp Howerton, of Ashland, K. C. Elswick, of Louisa, and Ed L Allen, of Prestonsburg, for appellants.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.

MORRIS Commissioner.

Appellants and Wood Meade were indicted by the grand jury of Floyd county for the murder of French Martin. Upon joint trial of Layne and Castle in the Lawrence circuit court, a verdict of guilty was returned, the jury fixing the penalty in each case at two years' confinement in the penitentiary. From a judgment in accord with the verdict an appeal is prosecuted.

Appellants insist that they were prejudiced in their substantial rights, because the court erroneously allowed the Commonwealth a change of venue from Floyd, the county in which the homicide occurred, to Lawrence, which was not a "contiguous" county, and gave erroneous instruction, (a) in improperly presenting the right of an officer when attempting to enforce an arrest, and (b) in improperly modifying the self-defense instruction, as given.

Taking up now the complaint that the Floyd court erred in changing the venue, the contention is that because the trial was directed to be had in a non-contiguous county, the latter was without jurisdiction. When the move for change was made in the Floyd court, it was by petition which alleged as a basis, conditions which were said to be due to wide relationship and acquaintance of the defendants, making it impossible to obtain a fair trial. Affidavits pro and con were filed. Later the commonwealth's attorney filed his statement saying that due to a state of lawlessness existing in Floyd county, the trial could not be conducted fairly therein. The motion for a change being submitted, the court ordered a change based solely on the commonwealth attorney's statement, and the court's personal knowledge. We say this because the order reads: "And the court being of the opinion from his own personal knowledge, and the written statement of the commonwealth's attorney, that the conditions set out *** exist in said county, and that for these reasons and conditions a fair and impartial trial of this case cannot be had in Floyd County; it is therefore ordered by the court that the venue of this action be changed to Lawrence County."

A removal under a showing of such conditions, or the courts' knowledge of their existence, is provided by section 1112, Ky. Stats. The record shows no interposed objection. Not only so, the record shows that later the commonwealth's attorney again filed his statement under the section of the statute supra, and the court again sustained the motion and entered the following order: "And the court being sufficiently advised *** sustained the motion, and by agreement of parties hereto it is ordered by the court that the venue of this case be changed to Lawrence County, Kentucky."

When the case was called in the Lawrence court, the defendants "renewed" their objection to the order changing the venue to Lawrence, and filed special demurrer to the jurisdiction of the Lawrence court "because the crime was committed in Floyd, and the indictment returned in Lawrence" (which was done after their motion to quash the Floyd county indictment), and because the removal was not to be a contiguous county. The motion and demurrer were overruled, with exception. Thus we are led to the conclusion that the argument here goes only to the question of the jurisdiction of the Lawrence court, on the ground that Lawrence county was not one contiguous to Floyd. We do not find any motion to remand the case to Floyd based on the provisions of section 1120, Ky.Stats., which provides for such when the court, from his personal knowledge or reliable information, concludes that the reasons for the removal no longer exist in the county from which the cause was removed. No showing was tendered as a basis for such remand.

From the record it appears that the first objection was not directed to the change to Lawrence county, but to any change of venue. This is true, because, as we have shown, they did not object to the first order of removal, and agreed to the second order referred to above. The matter of a change of venue, as we have often said, rests in the sound discretion of the court, and the court's ruling thereon will not be disturbed unless upon review this court concludes that such discretion has been violated. Com. v. Carnes, 125 Ky. 821, 102 S.W. 284, 31 Ky.Law Rep. 464; Browder v. Com., 136 Ky. 45, 123 S.W. 328; Wallace v. Com., 167 Ky. 277, 180 S.W.381. The complaint here is, not that the court violated a discretion in the matter, but that he had no authority to remove the case over objection to Lawrence county, because the latter was not contiguous. Since the records shows both lack of objection, and in addition agreement, counsel cannot now complain; particularly so when they failed to suggest any county contiguous to Floyd, or one in the same judicial district. This question of jurisdiction was definitely determined, contrary to appellants' views, by our opinion in the case of Com. v. Kelly, 266 Ky. 662, 99 S.W.2d 774. There is a wide distinction between venue and jurisdiction. Where the venue is properly changed, the statute fixes the jurisdiction.

We conclude that the complaint on the grounds advanced does not authorize a reversal.

A consideration of the alleged erroneous instructions requires a brief recital of the evidence. There are some undisputed facts: The homicide occurred around 7 p. m., May, 1934. Layne and Meade were respectively chief and deputy police of Wayland. Castle was deputy sheriff of Floyd county. There is no dispute that either Layne or Castle, or both, fired the shot or shots which resulted in Martin's death. There can be little doubt that during the afternoon Martin had been engaged in the illicit sale of whisky, nor that he was armed during the melee.

Meade, the deputy policeman, late in the afternoon received a report that there was some shooting "up the road." He walked up to the ball park, near the point where the later trouble arose, and where he saw a mule hitched. He inquired about the shooting, and says he got "second information" that some one was in the neighborhood selling liquor. He went back into town and reported to Layne. Assuming that the police lacked the power to arrest beyond the town limits, the two got into Meade's car and took Castle with them. They then drove to the place near the ball park; Martin was standing by the mule, with the saddle pockets in his hand or in place on the mule. Near the point where the mule was standing, the road leading up Beaver creek divided. There were two roads known in the record as the "old" and "new," running parallel for a distance of about 300 yards, when they again joined. The space, with undergrowth, between the two at some points being not more than 15 or 20 feet.

When the three officers drove up to within a short distance, varying from 30 to 40 feet, according to various witnesses, Martin was getting on his mule, and as soon as he did this he turned and fired one shot toward the officer's car, and Castle got out and fired two shots in the ground and called to Martin to halt. He saw no liquor, but could hear the jars rattling in the saddlebags. When Martin fired his pistol, according to this witness, he proceeded on his mule up the old road; the officers, believing they could reach the far fork of the road before he did, took the new road. They encountered a mudhole, with the result that Martin was reaching the junction before the car. At a point near the junction, Martin also met some obstruction, and, seeing the approach of the officer's car, stopped his mule and began shooting at the car; witness saying that the car was hit two or three times.

As soon as Martin started shooting, both Layne and Castle commenced, with the result that Martin was shot twice, one bullet going into the back of the skull on the right side and lodging in the molar bone. The other wound showed a point of entrance or exit, the doctor would not say which, near the left of the backbone, about the belt line, and a point of entrance or exit in the front toward the right. A pistol was found in the road some 15 or 20 feet from the road's junction and later picked up by one of the officers. It contained four or five empty hulls, and one empty chamber.

As to the initial encounter near the ball park, it was said by Meade that they had no search warrant or warrant for Martin's arrest. They saw him commit no misdemeanor, and the testimony does not show that deceased was advised that he was about to be arrested. Meade says that Martin was guilty of no offense until he "first fired at us." Layne's testimony substantiates the testimony of Meade as to what occurred at the opposite junction. Asked why he (Layne) shot, he replied: "Because he was going to kill us." Asked what violation of the law Martin had committed at the near fork of the road he replied, "He...