Marcum v. Broughton

• Decision Date: 28 March 1969
• Citation: 442 S.W.2d 307
• Parties: James Willard MARCUM, Appellant, v. Lester BROUGHTON, Jailer of Knox County, and Commonwealth of Kentucky, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 307

442 S.W.2d 307

James Willard MARCUM, Appellant, v. Lester BROUGHTON, Jailer of Knox County, and Commonwealth of Kentucky, Appellees.

Court of Appeals of Kentucky.

March 28, 1969.

As Modified on Denial of Rehearing June 20, 1969.

John J. Tribell, Middlesboro, for appellant.

John B. Breckinridge, Atty. Gen., Howard Trent, Asst. Atty. Gen., Frankfort, Carlos Pope, Commonwealth's Atty., Barbourville, for appellees.

REED, Judge.

James Willard Marcum has appealed from an order of the Knox Circuit Court dismissing his petition for a writ of habeas corpus. His motion for admission to bail was denied by the same court after hearing evidence. This habeas corpus proceeding was instituted to review the denial of bail. We determined that the appellant was entitled to bail and entered an order to that effect on March 14, 1969, and this opinion is delivered to explain our disposition of the matter.

It is claimed that on or about September 5, 1968, appellant shot and killed his brother in Clay County, Kentucky. He was arrested at the home of a neighbor a short distance away on the same day. The sheriff of Clay County effected the arrest and placed appellant in the Clay County jail. There he remained until September 8, 1968, when he was admitted to bail in the amount of $10,000 evidenced by a bail bond executed by a good and acceptable surety. Thereafter, the Clay County Grand Jury returned an indictment charging the appellant with the crime of 'willful murder,' under KRS 435.010, which is a capital offense punishable by confinement in the penitentiary for life or by death. Upon his arraignment, appellant was notified that he would be tried in the Clay Circuit Court on January 13, 1969. He remained free on bond, and before the case could be tried in the Clay Circuit Court the appellant and the Commonwealth, by agreement, changed the venue of the pending prosecution to the Knox Circuit Court for purpose of trial.

In the early part of February, 1969, the Judge of the Knox Circuit Court on his own motion caused appellant to appear before him and at that time ordered the bail revoked. Appellant's trial was set for April 15, 1969.

Appellant promptly filed a motion for bail. The motion was overruled at the conclusion of the evidentiary hearing held thereon and immediately thereafter appellant filed a petition for a writ of habeas corpus in the same court. It was agreed that the evidence heard on the motion for bail would be considered as the evidence on the petition for writ of habeas corpus. The trial judge thereupon entered an order overruling the petition for the writ of habeas corpus from which action this appeal was taken.

The evidence introduced by the Commonwealth on appellant's motion for bail consisted of the testimony of the Clay County sheriff and a state trooper who investigated the shooting. The appellant, without objection by the Commonwealth and with the consent of the court, introduced a sworn statement given by his sister-in-law, an eyewitness to the occurrence, which statement had been haven in appellant' attorney's office. The sister-in-law is the widow of another brother of the victim and the defendant.

It appears from the evidence that appellant and his sister-in-law went to the home of the deceased, who was a brother of the appellant, in order to secure possession of the house by the sister-in-law. It appeared that there had been past argument concerning who had the right to occupy the property. The appellant was armed with a .38 pistol. It further appears that during a discussion concerning the occupancy of the house, the deceased armed himself with a .22 rifle which was fully loaded; however, investigation after the shooting revealed that no shell was in the chamber of the rifle at the time deceased was killed. The sheriff testified that appellant admitted shooting his brother but stated that he had to do it. The .22 rifle was lying either under the body or partially under the body of the deceased at the time the sheriff arrived. The testimony of the sheriff makes clear that the appellant claimed self-defense.

The sworn statement of the sister-in-law was to the effect that the deceased was the aggressor, and precipitated the argument, and it was not until after the deceased threatened appellant with the rifle that the shooting occurred.

The right to bail is a constitutional one which has been safeguarded. It is provided that all persons are entitled to bail 'unless for capital offenses when the proof is evident or the presumption great.' Ky.Const., Sec. 16. The quoted language has been construed to mean the proof of guilt is evident or the presumption of guilt is great. See Day v. Caudill, Ky., 300 S.W.2d 45.

In Young v. Russell, Ky., 332 S.W.2d 629, we examined at some length the law in this Commonwealth relative to the issue with which we are here concerned. In Young we held that an order admitting a defendant to bail after indictment could be vacated or modified after the bail was taken by the court in which the prosecution was pending so as to recommit the defendant, upon grounds other than those specifically provided by Criminal Code of Practice, Sec. 99, which was then in effect. In the Young case the defendant was indicted on January 11, 1960, and was admitted to...