Manning v. Com.

Citation346 S.W.2d 755
PartiesSilas MANNING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
Decision Date04 November 1960
CourtUnited States State Supreme Court (Kentucky)

J. Thomas Soyars, William F. Edmunds, Hopkinsville, for appellant.

John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., for appellee.

MONTGOMERY, Judge.

Silas Manning appeals in forma pauperis from a death sentence received for the murder of H. M. Denton in Christian County. It is insisted that the trial court erred in refusing to grant appellant's motion for a change of venue. By reason thereof, it is urged that he was denied a fair and impartial trial in violation of his constitutional rights. United States Constitution Amendment VI; Kentucky Constitution Section 11. A refusal to grant a change of venue when local sentiment against a defendant makes a fair trial impossible is in violation of these provisions. Bradley v. Commonwealth, 204 Ky. 635, 265 S.W. 291; Estes v. Commonwealth, 229 Ky. 617, 17 S.W.2d 757.

H. M. Denton and his wife were killed on July 20, 1958. Appellant and Willie Barker were arrested and charged with the offenses.

Appellant was tried for the murder of H. M. Denton during the October 1958 term of the Christian Circuit Court. His counsel were appointed by the court. A mistrial resulted when the jury announced itself unable to agree on a verdict. The case was retried during the February 1959 term, resulting in a verdict of guilty and a death sentence. This judgment was reversed and a new trial ordered. Manning v. Commonwealth. Ky., 328 S.W.2d 421.

The case was retried during the February 1960 term of the Christian Circuit Court. A written application for a change of venue was made on behalf of the appellant. KRS 452.210, 452.220. It was verified by one of the counsel for appellant. The affidavit recited that appellant was '* * * absent from the county in that he is in the state penitentiary at Eddyville, Lyon County, Kentucky.' Eddyville is forty miles from Hopkinsville, where the Christian Circuit Court sits.

In summary, the motion for a change of venue was supported by: (1) Three affidavits of witnesses of Christian County, whose standing was not questioned, in which each witness expressed the opinion that the accused could not receive a fair trial in Christian County because of the state of public opinion; (2) the affidavits of appellant's counsel in which it was stated that they were unable to obtain further affidavits under KRS 452.220 because of the great local prejudice against the accused; (3) proof of the wide circulation of newspaper articles concerning the conduct of the prosecution and the details of the offenses; and (4) proof that sixty-four out of one hundred prospective jurors called were excused because they had formed or expressed an opinion as to the guilt or innocence of the accused.

The record is not clear but it indicates that the accused was moved to the state penitentiary under KRS 441.050, which provides in part:

'If there exists threatened violence or intense feeling and public indignation against a person charged with a crime and in the custody of an officer, and the circuit judge of the county that has jurisdiction of the offense charged is of the opinion that the person cannot be safely kept in the jail in that county, the circuit judge, with the consent of the Governor, may order such person removed for safekeeping to [the state reformatory or] the state penitentiary [whichever is] most convenient to the county having jurisdiction of the offense charged.'

In opposition to the motion, the joint affidavit of the Commonwealth's attorney and county attorney was filed which did not controvert or deny the allegations made in the motion except to question the accuracy and propriety of the affidavits of the defense counsel. The motion received unfavorable consideration twice: once before the jury was to be selected, and again after it had been selected but before it was sworn. The inconsistency in the denial of the change of venue is hard to understand in view of the requirements to be met under KRS 441.050 before a person charged with a crime may be removed to the state penitentiary for safekeeping. The statute requires a finding that '* * * there exists threatened violence or intense feeling and public indignation against * * *' an accused before the circuit judge may order his removal for safekeeping.

Appellant contends, and counsel for the appellee concedes, that generally the burden is upon the defendant in a motion for change of venue made by him to make a prima facie case entitling him to the relief sought, which is a matter in the discretion of the trial judge, except where the proof presented by the defendant is adquate under KRS 452.220 and is uncontradicted at the hearing by proof on behalf of the Commonwealth, the trial judge has no discretion in the matter but must grant the defendant's motion. Higgins v. Commonwealth, 94 Ky. 54, 21 S. W. 231, 14 Ky.Law Rep. 729; Greer v. Commonwealth, 111 Ky 93, 63 S.W. 443, 23 Ky.Law Rep. 489; Sullivan v. Commonwealth, 169 Ky. 797, 185 S.W. 134; Hill v. Commonwealth, 232 Ky. 453, 23 S.W.2d 930; Neace v. Commonwealth, 233 Ky. 545, 26 S.W.2d 489; Commonwealth v. Caldwell, 236 Ky. 349, 33 S.W.2d 1; Johnson v. Commonwealth, 268 Ky. 555, 105 S.W.2d 641; and Benge v. Commonwealth, 296 Ky. 82, 176 S.W.2d 131. There is no issue of fact that addresses itself to the trial court's discretion. The exception is a sound rule.

Appellee attacks the sufficiency of the motion for a failure to comply with KRS 452.220, in that the defendant did not verify the motion personally and the three witnesses in the supporting affidavits did not state that they verily believed to be true the statements of the motion for a change of venue.

The pertinent part of KRS 452.220(2) is:

'If the application is made by the defendant, it shall be made by petition in writing, verified by the defendant, and by the filing of the affidavits of at least two other credible persons, not kin to or of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county objected to, and that they verily believe the statements of the petition for the change of venue are true.'

KRS 452.210 et seq., deal with change of venue in order to secure a fair trial. Appellee...

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7 cases
  • Barker v. Wingo 8212 5255
    • United States
    • United States Supreme Court
    • June 22, 1972
    ...... couple was beaten to death by intruders wielding an iron tire. tool. Two suspects, Silas Manning and Willie Barker, the. petitioner, were arrested shortly thereafter. The grand jury. indicted them on September 15. Counsel was appointed on ......
  • State v. Montoya, 98
    • United States
    • Court of Appeals of New Mexico
    • August 16, 1968
    ...See also Yancey v. State, 98 Ga.App. 797, 107 S.E.2d 265 (1959); Brunner v. Commonwealth, 395 S.W.2d 382 (Ky.1965); Manning v. Commonwealth, 346 S.W.2d 755 (Ky.1961); McGee v. State, 200 Miss. 350, 26 So.2d 680 (1946); State v. Shawan, 77 N.M. 354, 423 P.2d 39 (1967); State v. Childers, 78 ......
  • Barker v. Wingo, 20662.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 20, 1971
    ......Manning, be first concluded. Apparently, the prosecution considered Manning's testimony essential to the prosecution of Barker. As counsel testified, Manning ......
  • Louisville and Jefferson County Metropolitan Sewer Dist. v. Simpson, 85-SC-688-DG
    • United States
    • United States State Supreme Court (Kentucky)
    • April 30, 1987
  • Request a trial to view additional results

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