Miller v. Commonwealth

• Decision Date: 24 April 1917
• Citation: 194 S.W. 320,175 Ky. 241
• Parties: MILLER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

194 S.W. 320

175 Ky. 241

MILLER v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 24, 1917

Appeal from Circuit Court, Letcher County.

E. L Miller was convicted of murder, and appeals. Affirmed.

Hays &amp Newman, of Whitesburg, for appellant.

M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth.

CLARKE J.

Appellant was convicted, in the Letcher circuit court of murdering E. W. Boggs, in the town of Jenkins, on the 26th day of November, 1916, and his punishment fixed at confinement in the penitentiary for life. He seeks a reversal of that judgment upon the following grounds: (1) That the court erred in denying him a change of venue; (2) in overruling his motion for a continuance; (3) that the jury was improperly selected; (4) that incompetent evidence for the commonwealth was admitted; (5) because of the alleged misconduct of a juror; and (6) because of prejudicial error in the instructions.

1. Appellant did not file, in support of his petition for a change of venue, any corroborative affidavits or evidence, and section 1110 of the Kentucky Statutes, which, pursuant to constitutional authority, provides how a change of venue may be obtained, requires that, to authorize the change, the petition therefor must be supported and corroborated by affidavits of at least two credible persons, without which the court is without authority to grant the change of venue. Fitzgerald v. Commonwealth, 98 S.W. 319, 30 Ky. Law Rep. 349; Graham v. Commonwealth, 164 Ky. 317, 175 S.W. 981.

2. At the next term of the court after Boggs was killed, the appellant having been arrested upon a warrant charging him with the crime and being in jail, an indictment was returned by the grand jury, charging him and Walter Stewart with having murdered Boggs. Appellant then applied for bail, which, upon hearing, was refused. Thereafter, at the same term of court, another indictment was returned by the grand jury, charging appellant, Walter Stewart, and John Horn with the crime. No bench warrant was issued upon this second indictment, and appellant claims not to have known of its existence, until the next regular term of the court, when he was arraigned for trial upon the second indictment. He then moved for a continuance, and, in support thereof, filed an affidavit of what certain absent witnesses, subp naed in his behalf, would testify. The attorney for the commonwealth then consented that, subject to exceptions for incompetency and irrelevancy, the affidavit might be read as the testimony of the absent witnesses, and the court overruled the motion for a continuance, to which the defendant excepted. Upon the trial, such parts of the affidavit as were competent were read as the evidence of the absent witnesses, on behalf of the defendant, and he then moved the court that these statements of the absent witnesses be taken as true, which motion was overruled. It is insisted that, since his motion for bail was made upon the first indictment and he had no knowledge or information about the second indictment until his case was called for trial, at the April term of court, when he was required to stand trial upon the second indictment, the April term of court was the appearance term, in so far as the second indictment was concerned, and should be regarded as the term at which the indictment was found, upon his motion for a continuance. This contention, however, cannot be sustained, because the indictment was not found at the April term of court, but was returned at the January term, and the commonwealth is required to admit as true defendant's affidavit as to what absent witnesses would say if present, in order to avoid a continuance, only at the same term at which the indictment is found. Section 189 Criminal Code. At a subsequent term, in order to coerce a trial, the attorney for the commonwealth is required to admit only that the absent witnesses, if present, would so testify. This was done, and appellant was permitted to read this affidavit as the testimony of the absent witnesses, in so far as same was competent, and the court did not err in overruling the motion for a continuance.

3. The regular panel was exhausted before a jury was obtained, and five vacancies were filled by bystanders. Section 281 of the Criminal Code denies to this court jurisdiction to review a decision of the trial court, in a criminal case, upon challenges to the panel and for cause, and we are without authority to review the action of the court upon such matters, and hence we cannot order a reversal upon that ground. Curtis v. Commonwealth, 110 Ky. 845, 62 S.W. 886, 23 Ky. Law Rep. 267; Powers v. Commonwealth, 114 Ky. 237, 70 S.W. 644, 1050, 71 S.W. 494, 24 Ky. Law Rep. 1007, 1186, 1350; Hendrickson v. Commonwealth, 146 Ky. 742, 143 S.W. 433; Thurman v. Commonwealth, 154 Ky. 555, 157 S.W. 919.

4. The admitted evidence...