Neace v. Commonwealth

• Decision Date: 22 March 1932
• Parties: Neace v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 149

Neace v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 22, 1932.

1. Judges. — Affidavit respecting disqualification of judge must state facts on which affiant bases his belief that he will not be afforded fair trial (Ky. Stats., sec. 971-6).

2. Judges. — Affidavit on motion that judge vacate bench held to specifically charge facts requiring vacation as disqualified (Ky. Stats., sec. 971-6).

Affidavit, in addition to generalities to effect that regular judge would not afford accused a fair and impartial trial, stated specifically that judge, on a named date and at a time when defendants were in jail, went in automobile to place of homicide, and had a meeting with brother of deceased and counseled and advised with him and other relatives and witnesses for commonwealth against defendants.

3. Judges. — Court cannot inquire into truth or falsity of statements in affidavit filed in support of motion to require judge to vacate bench as disqualified (Ky. Stats., sec. 971-6).

Appeal from Breathitt Circuit Court.

HENRY L. SPENCER, ERVINE TURNER, and R.A. DUNN for appellant.

BAILEY P. WOOTTON, Attorney General, H. HAMILTON RICE, Assistant Attorney General, and A.F. BYRD for appellee.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Reversing.

Blake Centers, Braddox Neace, Joe Terry, Loss Noble, Ballard Neace, and Bobbie Neace were jointly indicted in the Breathitt circuit court for the murder of William Barnett. On separate trial, Bobbie Neace was found guilty of murder and his punishment fixed at imprisonment for life. He has appealed.

In a brief consisting of 110 pages, counsel for appellant assign ten alleged errors, each of which it is argued constitutes prejudicial and reversible error. In an 80-page brief filed by counsel for commonwealth, it is argued with equal vigor that no prejudicial error was committed.

All of the defendants in the indictment, except Loss Noble, a constable, were deputies under Lee Combs, sheriff of Breathitt county. The shooting which resulted in the death of William Barnett occurred on a ridge forming a watershed between Hays' branch and Smith's branch. It is made to appear in the record that, at the time of the shooting, the officers, acting on information and complaint concerning the manufacture of whisky on these creeks, were attempting to locate and destroy illicit stills. It will not be necessary to a decision of the appeal to enter into a detailed recital of the evidence, and we shall refer to it only in so far as it may have a bearing on the question to be determined. Evidence was introduced on behalf of appellant tending to indicate that William Barnett, some of his immediate family, and perhaps other relatives and friends, were extensively engaged in the manufacture of moonshine liquor in the vicinity of the difficulty.

The conclusion reached renders it unnecessary to give attention to but one of the grounds argued for reversal. When the case was called for trial, but after the defendants had made a motion before the judge of Breathitt county for bail, appellant entered motion that the regular judge vacate the bench and another judge be selected or appointed to try the case. In support of that motion he filed his affidavit in which other defendants joined. In the affidavit it is stated that the regular judge would not afford defendants a fair and impartial trial and would not impartially decide an application for change of venue for seven different reasons set out at length therein. The affidavit is largely made up of generalities and amounts to little, if anything more than mere conclusions, and, while charging that the regular judge would not afford accused a fair and impartial trial, sufficient facts are not stated to form a reasonable or substantial basis for such charges.

The third and fourth reasons assigned as showing the disqualification of the judge are as follows:

"Third: — That the said Judge has publicly expressed his bias, hatred and bitter feeling toward the said Lee Combs and the defendants herein, both before and since the said defendants made their motion for bail herein, and has publicly stated that the said Lee Combs, and each and every one of his deputies should be in the penitentiary, and that he about had two of them in the penitentiary and that he, referring to the defendants in this case, was making a strong move to get the rest of them there.

"Fourth: — That the said Judge on Wednesday, July 29th, 1931, at a time when the defendants were in the Breathitt county jail, went in an automobile to Loss Creek, and while there within a short distance of the place where William Barnett was shot, had a meeting with Farrish Barnett, the brother of William Barnett, and for almost an hour counselled and advised with him and other relatives of the said William Barnett and witnesses for the Commonwealth against the said defendants in this case."

It is averred in the seventh paragraph of the affidavit that, immediately after the shooting of William Barnett, defendants...