Morris v. Com.
| Citation | 208 S.W.2d 58,306 Ky. 349 |
| Parties | MORRIS v. COMMONWEALTH. |
| Decision Date | 20 January 1948 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.
Dickie Morris was convicted of murder and he appeals.
Reversed and remanded.
Fritz Krueger, of Somerset, for appellant.
Eldon S. Dummit, Atty. Gen., and H. K. Spear, Asst. Atty. Gen., for appellee.
VAN SANT, Commissioner.
Appellant lived with his father, Wash Morris, near the 'Sheep Lot' outside but near the limits of the City of Monticello, in Wayne County. In the late afternoon of December 22, 1946, appellant, with two companions, was in the Sheep Lot drinking intoxicating liquor. J. J. Gibson, Sheriff of Wayne County, and a city policeman, approached them, and appellant fled toward his home. Gibson pursued him, and when within 20 or 30 feet of the Morris residence, was shot from ambush. The bullet entered the Sheriff's mouth, causing instant death. One witness testified that appellant previously had threatened to kill the deceased, and another testified that appellant offered him $25 if he would kill the deceased. It is further proven in evidence that appellant was engaged in the illicit traffic of whisky, and that he and the Sheriff had had trouble on this account. The only eyewitness to the tragedy testified that he saw appellant fire the lethal shot through an opening in a window. Appellant was indicted by a Grand Jury of Wayne County, and when the case was called for trial moved the Court for a change of venue, alleging that the feeling against him was so high in Wayne and the other counties of the Twenty-Eighth Judicial District, viz., Rockcastle Pulaski, and Clinton, that he would be unable to obtain a fair trial in that District. In response to this affidavit the Commonwealth's Attorney filed his own, wherein he admitted that appellant could not obtain a fair trial in the Twenty-Eighth Judicial District, and further alleged that he likewise could not obtain a fair trial in either McCreary or Russell County, which were the only remaining counties contiguous to Wayne. The Court entered an order sustaining the motion for a change of venue, and in the order recited that, of his own knowledge, the defendant could not obtain a fair trial in any of the counties we have named, and transferred the case to the Fayette Circuit Court for trial. Appellant excepted to so much of the order as transferred the case to Fayette County. Upon the trial, appellant was convicted and sentenced to death in the electric chair.
On this appeal appellant contends that the Wayne Circuit Court erred in removing the case to Fayette County, because it was not shown that he could not obtain a fair trial in a county nearer or more convenient to his home; and the Fayette Circuit Court erred (1) in admitting incompetent evidence (2) in instructing the jury; and (3) in overruling his objections to improper argument by the Commonwealth's Attorney.
KRS 452.210 provides:
KRS 452.220, Subsection (2), provides: '* * * If objections to all the adjoining counties are made and sustained, the change (of venue) shall be made to the nearest county to which there is no valid objection, preference being given to counties of the same judicial district.'
Section 7 of the Constitution of Kentucky provides that the ancient mode of trial by jury shall be held sacred; and Section 11 of that instrument provides that the defendant shall have a speedy public trial by an impartial jury of the vicinage.
These statutory and constitutional provisions are clear and mandatory. In Conley v. Commonwealth, 229 Ky. 358 17 S.W.2d 201, 202, the crime was committed in Morgan County and upon application for a change of venue the case was transferred to Carter County, which was not adjacent to Morgan, although it was but one county removed therefrom. No showing was made that a fair trial could not be had in a county adjacent to Morgan. We reversed the judgment in that case, because the Court did not transfer the case to an adjacent county. In the course of the opinion the author quoted from Kennedy v. Commonwealth, 78 Ky. 447: "These provisions, construed together, seem to contemplate that a change of...
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State v. Plantz
...1375, 2 L.Ed.2d 1372; People v. Galle, 153 Cal.App.2d 88, 314 P.2d 58; Combs v. Commonwealth, (Ky.) 341 S.W.2d 774; Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58; Gray v. Commonwealth, 198 Ky. 610, 249 S.W. 769; Commonwealth v. Tucker, 189 Mass. 457, 76 N.E. 127, 7 L.R.A., N.S., 1056; ......
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Colbert v. Com., 1998-SC-1070-DG.
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