Martin v. Commonwealth

• Decision Date: 19 March 1907
• Citation: 100 S.W. 872
• Parties: MARTIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

100 S.W. 872

MARTIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 19, 1907

Appeal from Circuit Court, Knott County.

"Not to be officially reported."

Tandy Martin was convicted of manslaughter, and appeals. Affirmed.

Jouett Byrd & Jouett, for appellant.

N. B Hays, Atty. Gen., C. H. Morris, and W. H. May, for the Commonwealth.

HOBSON J.

Tandy Martin was indicted in the Knott circuit court for the murder of John J. Amburgy. On a trial he was found guilty of manslaughter, and his punishment fixed at 18 years in the penitentiary. On appeal to this court the judgment was reversed and a new trial granted. See Martin v Commonwealth, 28 Ky. Law Rep. 295, 89 S.W. 226. On the return of the case to the circuit court the defendant filed grounds and moved the court to grant a change of venue. The court heard evidence on the motion and overruled it, to which the defendant excepted. He then, on the same evidence, moved the court to order the jury summoned from another county. The court sustained the motion over the objection of the commonwealth and ordered the jury summoned from Letcher county. Another trial was had and the defendant was again found guilty of manslaughter; his punishment being fixed at 10 years in the penitentiary. His motion for new trial was overruled, and he again appeals.

On the question of the change of venue the proof was very conflicting, and under all the evidence we cannot say that the court abused his discretion in overruling the motion. Whether the venue should be changed or not is a matter on which the trial judge on the ground can well judge, and the rule is that his judgment will not be disturbed unless his discretion is abused. The evidence for the defendant tended to show substantially that the family of the deceased were extensively related by blood and marriage in Knott county and were people of considerable influence. The sum of the evidence was that it would be very difficult to get a jury in Knott county all of whom would be free from this influence. When the court ordered the jury from another county, he gave the defendant all that the evidence showed to be necessary, and no substantial right of his was prejudiced by the refusal of the court to change the venue, in view of the fact that the jury was obtained from another county. Something over two years had elapsed between the homicide and the trial, and there was no such state of feeling in Knott county as to make it improper that the trial should be held there. The case of Shipp v. Commonwealth rests upon an entirely different state of facts.

There was no substantial error in the rulings of the court on the admission of evidence. The court properly refused to allow the defendant to show that the deceased, Amburgy, was engaged in selling whisky or keeping it for sale. This...