Mitchell v. Commonwealth

• Citation: 225 Ky. 83,7 S.W.2d 823
• Parties: MITCHELL et al. v. COMMONWEALTH.
• Decision Date: 12 June 1928
• Court: Kentucky Court of Appeals

7 S.W.2d 823

225 Ky. 83

MITCHELL et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

June 12, 1928

Appeal from Circuit Court, Pike County.

Homer Mitchell and another were convicted of murder, and they appeal. Reversed and remanded for a new trial.

O. M Goff, of Pikeville, for appellants.

J. W Cammack, Atty. Gen., and M. B. Holifield, Asst. Atty. Gen for the Commonwealth.

HOBSON C.

Homer Mitchell and Houston Davis were indicted in the Pike circuit court for the murder of Malcom Sloan. On the trial of the case they were each found guilty of murder. Mitchell's punishment was fixed at death, and Davis's at life imprisonment. They appeal.

The first question presented is whether the court erred in refusing a continuance of the case. Sloan was shot and killed on the evening of December 24, 1927, in Wolfpit, a mining camp. After the shooting Davis went home and Mitchell hid himself in the mine. A number of people assembled. The next day the Governor ordered out the National Guard, which reached the place on the 26th. The persons hunting for Mitchell arrested him on the 26th in the mine. He was shot twice and beat over the head with a rifle. The party having charge of him surrendered him to the officers on condition that he be given an immediate trial and be given the death sentence. The officers took him to Pikeville. The court summoned a special grand jury. The indictment was returned against him on the 27th. The case was set for trial on that day, and on his motion for a continuance was set over to December 30th. On that day the trial was had. He had no witnesses present. The court allowed his affidavit to be read as the testimony of the absent witnesses. He had employed an attorney on the 27th. The attorney filed his affidavit that he had not time to prepare the case for trial; that there was such public feeling against the defendants that he had been unable to make proper investigation or learn the facts that could be proved in their favor. The defendants were negroes; Sloan was a white man. When the National Guard reached Wolfpit, they were met by a mob of 75 to 100 men, whose purpose was to kill Mitchell when they found him. The feeling in the community remained the same until the trial. The defendants had no opportunity to prepare their defense, as they were kept in close custody from their arrest until the trial. Section 189 of the Criminal Code provides that, when an affidavit is filed for continuance, the trial may be had if the attorney for the commonwealth admits that the absent witnesses, if present, will testify as alleged in the affidavit, but there is this provision:

"Provided, however, the court may, when, from the nature of the case, it shall be of opinion that the ends of justice require it, grant a continuance, unless the attorney for the commonwealth will admit the truth of the matter which it is alleged in the affidavit such absent witness or witnesses would testify to."

Section 11 of the Constitution provides that in all criminal prosecutions the accused has the right "to have compulsory process for obtaining witnesses in his favor." This necessarily means that he shall have a reasonable opportunity to obtain the presence of his witnesses and prepare for trial. The facts here are fully as strong as in Smith v. Commonwealth, 133 Ky. 532, 118 S.W. 368. In that case the trial was set four days after the indictment was returned. In Allen v. Commonwealth, 168 Ky. 325, 182 S.W. 176, the trial was had three days after the return of the indictment. The facts there are no stronger than those here, and in both cases a new trial was ordered. To same effect, see McDaniel v. Commonwealth, 181 Ky. 766, 205 S.W. 915, and Miller v. Commonwealth, 197 Ky. 703, 247 S.W. 956. In this case, as in the case last cited, the accused was wounded and showed that he was...