Nickell v. Kelly

• Citation: 357 S.W.2d 856
• Parties: Cecil NICKELL, Appellant, v. William KELLY, Appellee.
• Decision Date: 25 May 1962
• Court: United States State Supreme Court (Kentucky)

Page 856

357 S.W.2d 856

Cecil NICKELL, Appellant, v. William KELLY, Appellee.

Court of Appeals of Kentucky.

May 25, 1962.

John Y. Brown, Sr., Lexington, for appellant.

Tolbert Combs, Commonwealth's Atty., Calvin N. Manis, County Atty., Hazard, Daniel Boone Smith, Harlan, for appellee.

PALMORE, Judge.

The appellant, Cecil Nickell, was denied bail while being held pending action by the Perry County grand jury on charges including armed robbery, a capital offense. KRS 433.140. He brought this habeas corpus action in the Perry Circuit Court, and it resulted in a finding and judgment to the effect that the proof of guilt is evident and the presumption great, hence he is not entitled to bail. Cf. Const. Sec. 16. He appeals. Crim.Code Sec. 429a-1.

In establishing that an offense is not bailable the burden is on the Commonwealth to show that 'the proof is evident or the presumption great.' Day v. Caudill, Ky.1957, 300 S.W.2d 45, 46, 48; Young v. Russell, Ky.1960, 332 S.W.2d 629, 633. However, the judge who conducts the hearing on the writ 'is vested with a sound discretion' in determining whether that burden has been sustained, and his decision will not be disturbed on appeal unless he has clearly abused his discretion. Wells v. Commonwealth, 1944, 299 Ky. 51, 184 S.W.2d 223; Brooks v. Gaw, Ky.1961, 346 S.W.2d 543. To state the latter policy another way, if it appears from a review of the record that there is room for an honest difference of opinion among reasonable men as to whether 'the proof is evident or the presumption great,' this court will not substitute its own judgment for that of the trial court.

The evidence of the hearing in this proceeding disclosed that on the night of April 17, 1962, Dr. L. H. Wagers was assaulted and robbed and his wife severely beaten in their home at Hazard, Kentucky, by three armed men wearing masks. One of them was dressed in a dark suit and dark shirt. He had black hair parted on the left side. From these details (except for the mask), an hour and a half later at the police station Dr. Wagers identified the appellant as that man. Again on the witness stand he positively identified him.

Shortly after the robbery, and a few moments before the arrival of police officers the appellant came to the house next door to the Wagers home, where Dr. Wagers had gone to summon help, and asked the lady of the house, Mrs. Eblen, to call the police because some men had just held a gun on him. His story was that he was on his way driving from Lexington to Whitesburg and was about to go to a motel in the neighborhood for the night when suddenly two men opened his car door, pointed a pistol at him and forced him to drive them a short distance, but when they saw the lights of another car approaching they thought it was the police and departed as abruptly as they had appeared.

When the forces of the law arrived at the Eblen home appellant went with...