Neace v. Commonwealth
| Decision Date | 09 October 1931 |
| Citation | 240 Ky. 420,42 S.W.2d 528 |
| Parties | NEACE et al. v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Leslie County.
Elvin Neace and Chester Campbell were convicted of murder, and they appeal.
Affirmed.
C. A Noble and Vernon Faulkner, both of Hazard, for appellants.
J. W Cammack, Atty. Gen., and M. B. Holifield, of Frankfort, for the Commonwealth.
This is the second appeal of this case. Elvin Neace was jointly indicted with Manuel Miller, Chester Campbell, Andrew Godsey and Dave Miller for the murder of Boycan Jones. The opinion in the first appeal of this appellant's case will be found in 233 Ky. 545, 26 S.W.2d 489, 491. Manuel Miller was tried and convicted and the judgment reversed by this court for reason set out in Miller v. Commonwealth, 234 Ky. 346, 28 S.W.2d 45.
The judgment of conviction in these two above-styled actions was reversed for error of the court in overruling appellant's motion for a change of venue, as provided by Kentucky Statutes, § 1109. When the motion was filed, supported by the requisite number of affidavits, the commonwealth offered no proof. The trial judge ordered the allegations of the petition controverted of record and overruled the motion. The court said that was erroneous. Miller v. Commonwealth, supra. That petition, motion, and affidavits are before us in this appeal. The petition asked for a change of venue to some county in the state "other than Perry or Leslie." The petition and affidavits relate to conditions in Perry county and nowhere show the existence of conditions in Leslie that would prevent appellants from obtaining a fair and impartial trial in that county.
In reversing this cause in the former appeal, the court in the course of that opinion said: "Because of the failure of the court to change the venue on the showing as made, the case must be reversed, but this does not mean that the court may not hear evidence on the application for a change of venue and decide the question as the rights of the parties may appear." Since the petition and supporting affidavits showed no existing condition in Leslie county that would prevent defendants from obtaining a fair and impartial trial, the court, upon calling the case upon its return to Perry county, inquired of the defendants if they desired to introduce evidence in support of their petition for change of venue. The defendants, in response to this inquiry, announced they desired to take no further steps until the commonwealth met the issue raised by their petition. The Court of Appeals had said the question was an open one and the court could hear evidence. The opportunity was offered defendant to introduce such evidence as he desired. The court thereupon made an order transferring these cases to Leslie circuit court for trial. We are asked to reverse this judgment because of the change of venue to Leslie county. Perry and Leslie counties compose the Thirty-Third judicial district. The petition failed in its allegation as to any condition in Leslie county that would prevent appellants from obtaining a fair and impartial trial. The same legal requisites were required in the defendants' objection to Leslie as were required in the objection to Perry. In this particular the application is unsupported by allegation or proof.
The trial in the Leslie circuit court resulted in a verdict of conviction and punishment of life imprisonment. The appellants insist the court erred in not transferring this case to some county other than Leslie. For the reason set out in this opinion it is convincing the court did not err in transferring the trial to the Leslie circuit court.
The case of Manuel Miller v. Commonwealth,1 42 S.W.2d 308, was affirmed by this court, the opinion being delivered September 29, 1931....
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