McElwain v. Commonwealth

• Decision Date: 05 January 1912
• Citation: 142 S.W. 234,146 Ky. 104
• Parties: McELWAIN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

142 S.W. 234

146 Ky. 104

McELWAIN v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 5, 1912

Appeal from Circuit Court, Simpson County.

Joe McElwain was convicted of murder, and he appeals. Affirmed.

Roark &amp Finn and L. B. Finn, for appellant.

Jas Breathitt, Atty. Gen., Sims & Rodes, John S. Ray, and C. W Milliken, for the Commonwealth.

WINN J.

Joe McElwain shot and killed Will Weir on October 17, 1910. The killing occurred in Weir's country store at Salmons Post Office, in Simpson county. McElwain was thereupon indicted for murder at the regular November, 1910, term of the Simpson circuit court. With him was indicted his brother-in-law, Lum Vance, who was the only one present, save McElwain, when Weir was killed. The case came on for trial at a special term of the court, called for the purpose, held in December, 1910. The defendants exercised their right of separate trial, whereupon the commonwealth proceeded to try McElwain. He was found guilty, and his punishment fixed at life imprisonment in the penitentiary. He appealed here. His complaints will be discussed seriatim.

Upon the oral argument it was suggested by appellant's counsel that the calling of the special term and the early trial in December following the killing were unfair to the defendant; but the record does not disclose any motion for a continuance, nor does any affidavit appear to show that the defendant was then not ready for trial. In the absence of any effort by the defendant to continue, he will not be heard to complain of the time of his trial.

His next ground of complaint is that his motion for a change of venue was overruled. Upon the motion, about the same number of witnesses pro et con were heard. They were about evenly balanced in their views as to whether defendant could be fairly tried in Simpson county. The right of trial in a county other than that where the offense occurs is purely statutory. The court must order the transfer "if it appears that the defendant or the commonwealth cannot have a fair trial in the county where the prosecution is pending." Statutes, § 1109 (Russell's St. § 3219). The burden of bringing the case within the demand of the statute is upon the applicant; and by the very terms of the language of the statute the trial court must have a latitude of judgment and discretion in passing upon any particular application. And it has wisely and reasonably been held by this court that the exercise of such a discretion will not be reviewed, unless the application of a reasonable inspection of the record leads this court to believe that the trial court has abused its discretion. See Crockett v. Commonwealth, 100 Ky. 382, 38 S.W. 674, 18 Ky. Law Rep. 835; Greer v. Commonwealth, 111 Ky. 93, 63 S.W. 443, 23 Ky. Law Rep. 489, and other cases. The same rule was declared in the case of Shipp v. Commonwealth, 124 Ky. 643, 99 S.W. 945, 30 Ky. Law Rep. 904, 10 L. R. A. (N. S.) 335, relied on by appellant here. In that case it is said that "the matter is in the discretion of the court, and ordinarily this court will not reverse the action of the lower court in such proceedings. But this court has the right of review, and, when it appears to us that the discretion of the court has been abused, it is clearly our duty to reverse." It exercised its right there because, upon the facts in the record, it appeared that the discretion had been abused. In the case at bar we are not prepared to say that, had the matter been one of first impression, we would have denied the change of venue; but we are unable to find in the record presented a sufficient basis upon which to rest any conclusion that the discretion of the trial court was abused. In reaching this conclusion we have been much impressed by one circumstance in the record. Appellant at the time he killed Weir stood indicted for shooting and wounding Weir in January of the same year. It appears from an avowal put into the record by appellant a jury acquitted him under this charge at the same special term of court at which application for the change of venue was made in the case at bar.

The objection that a special venire was summoned from Warren county, the home of an employed attorney for the prosecution, is without merit. It will not do to say that the employment of an attorney in any county so subjects its otherwise properly qualified citizens to bias as to prevent their fair service in the jury box.

It is urged upon the argument for appellant that the second clause of the instruction upon self-defense, whereby the jury was restricted from finding him guiltless under the general theory of self-defense, in case he should first have assaulted Weir with a pistol, was erroneously given because there was no evidence upon which the restricting clause might be based. The rule is sound; but the evidence is not wanting. At least, there are admissible facts, in the record from which the jury might with entirely sound judgment believe that at one stage of the difficulty, a stage preceding its fatal termination, appellant had first assaulted Weir with a pistol, then found himself in danger, and then fired the fatal shot. Weir was struck by three bullets, and only three shots were fired. His own weapon was found fully loaded beside his dead body. Dr. London describes the wounds--one in the back from right to left, one across the front of the body from left to right, and a smashing powder-marked wound entering in the left jaw. He says that the head wound caused the death, an immediate cessation of consciousness, and the fall; that neither the back nor the frontal wound would have caused Weir to fall. When he fell, he lay in the narrow aisle with his left side, the side of the facial wound, toward McElwain. The back wound, therefore, could not have been made as Weir fell, for, according to this witness, it was from right to left. Nor reasonably could it...