Neace v. Commonwealth

• Decision Date: 25 March 1930
• Citation: 233 Ky. 545,26 S.W.2d 489
• Parties: NEACE et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

26 S.W.2d 489

233 Ky. 545

NEACE et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

March 25, 1930

Appeal from Circuit Court, Perry County.

Elvin Neace and another were convicted of murder, and they appeal.

Reversed and remanded.

C. A Noble and Vernon Faulkner, both of Hazard, for appellants.

J. W Cammack, Atty. Gen., and James M. Gilbert, Asst. Atty. Gen for the Commonwealth.

LOGAN J.

The appellants were jointly indicted with Dave Miller, Manuel Miller, and Andrew Godsey at the June term of the Perry circuit court, 1929, charged with the crime of willful murder. They were convicted at a trial held in September, and their punishment fixed at confinement in the penitentiary for life.

It is unnecessary to narrate the details of the revolting crime. They were charged with the murder of one Boycan Jones, a deputy sheriff of the county, and proof tended to establish that the murder was accomplished with savagery unexampled in modern life. The evidence was abundantly sufficient to authorize a conviction, and it will not be commented on or discussed at length because of the unfortunate necessity of another trial.

A motion was entered supported by affidavit requesting the regular circuit judge to vacate the bench during the trial as is allowed under the provisions of section 971--6, Ky. Stats. The failure of the judge to sustain the motion is relied on as grounds for a reversal. It has been uniformly held by this court that objection to the trial judge is a question of jurisdiction, and to be available such objection must be before an appearance to the merits of the action, or the submission of preliminary motions by either party preparatory to a trial. Denny v. Com., 175 Ky. 357, 194 S.W. 330. The motion was not seasonably made in this case. There had been an appearance to the merits, and preliminary motions and steps had been taken by both parties in preparation for the trial when the motion was first made. There was an application for a change of venue supported by the requisite number of affidavits containing the requisite allegations, and the grounds of the motion as embodied in it were such as to require a change of venue, if their truth was established to the satisfaction of the court.

When the motion was made, notice thereof was waived by the county attorney. The proceedings were such, so far as appellants were concerned, as are required by the provisions of section 1109, Ky. Stats. When the motion was filed, the trial judge directed that an order be made controverting the allegations of record, and he then, without further proof, or any proof offered by the commonwealth, overruled the motion. Where a defendant in a prosecution such as this makes his motion for a change of venue setting up grounds that are sufficient, and supporting it by the requisite affidavits, and no witnesses are introduced by either party, the defendant is entitled to a change of venue, and the court has no discretion in the matter. Higgins v. Com., 94 Ky. 54, 21 S.W. 231, 14 Ky. Law Rep. 729; Bishop v. Com., 58 S.W. 817, 22 Ky. Law Rep. 760; Holmes v. Com., 218 Ky. 314, 291 S.W. 383. It is proper for the trial court to overrule a motion for a change of venue when the application is not made in accordance with the provisions of the statute. The affidavits supporting the motion must conform to the requirements of the statute, else the court should refuse the application. Hunter v. Com., 208 Ky. 466, 271 S.W. 559.

In the able brief filed by the Attorney General he takes the position that the burden of proof is on the applicant to show good grounds for a change of venue. That position is sound. McElwain v. Com., 146 Ky. 104, 142 S.W. 234; Smith v. Com., 148 Ky. 60, 146 S.W. 4; Combs v. Com., 160 Ky. 386, 169 S.W. 879. But the burden is met when the necessary grounds are set out in the motion and the motion is supported by the requisite affidavits. Hill v. Com., 232 Ky. 453, 23 S.W.2d 930.

When a motion alleging sufficient grounds is made for a change of venue supported by requisite affidavits, the Commonwealth, if it so desires, may controvert the allegations of the application and may attack the sufficiency of the affidavits by proof, and the court, after hearing all evidence that may be introduced in favor of the applicant and in opposition to his motion in the exercise of a sound discretion, must determine whether the venue should be changed. This court will not reverse because of the ruling of the trial court on the motion for a change of venue unless he abused a sound discretion.

In the brief filed by the Attorney General he very skillfully attempts to argue away the error of the trial court by taking the position...