Noe v. Com.

• Decision Date: 09 March 1937
• Citation: 103 S.W.2d 104,267 Ky. 607
• Parties: NOE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

103 S.W.2d 104

267 Ky. 607

NOE v. COMMONWEALTH.

Court of Appeals of Kentucky

March 9, 1937

Appeal from Circuit Court, Harlan County.

Otis Noe was convicted of murder, and he appeals.

Affirmed.

R. S Rose, J. O. Baker, and R. L. Pope, all of Harlan, and J. L Hays, of Whitesburg, for appellant.

B. M Vincent, Atty. Gen., A. E. Funk, Asst. Atty. Gen., and E. H. Johnson, of Harlan, for the Commonwealth.

STANLEY Commissioner.

Otis Noe appeals from a judgment convicting him of murder and sentencing him to life imprisonment. He and others were jointly charged with having killed Elmon Middleton, county attorney of Harlan county, by placing dynamite or another explosive substance in his automobile in such manner that the turning on of the ignition or starter of the motor exploded it.

There is no transcript of evidence or bill of exceptions before us. The grounds upon which reversal of the judgment is asked are, principally, that the trial court should have vacated the bench upon the defendant's renewed motion, and that he had been placed in jeopardy before the trial which resulted in his conviction.

The Commonwealth has made a motion to dismiss the appeal upon the ground that there is no question properly presented. The basis of the motion is that the court is confined to the single question of whether the indictment supports the judgment and that is not raised by the appellant. Even if that were the only question, it does not follow the appeal should be dismissed. We are of opinion, however, that the points which are argued by the appellant are presented by the clerk's transcript of the pleadings and orders. The motion to dismiss the appeal is therefore overruled.

The defendant was arraigned and entered a plea of not guilty on September 24, 1935. His trial was set for December 4, and he was ordered returned to the reformatory at Frankfort for safe-keeping. In the meantime several motions of the defendant in relation to authorizing his counsel to consult him privately in the prison were acted upon. On December 3 the defendant and his codefendants filed a motion that the judge vacate the bench because of certain statements and acts alleged to have been made and done by him indicating, as the defendants charged, that he would not afford them a fair trial. Affidavits in support were filed with the motion. It was overruled. Likewise a motion for a change of venue was denied.

Orders entered before and in relation to a trial by a jury from Bell county are not in the record. It is disclosed that the case was submitted to it on Saturday morning, January 4, 1936. The jury was discharged without having reached a verdict on Monday, January 6. The case was assigned for retrial on the 8th, and a venire from Clark county was directed to be summoned. On that morning the defendant renewed his motion that the judge excuse himself from trying the case and supplemented his previous affidavits. There were three grounds for the renewed motion. One was that when the first jury had reported they were unable to make a verdict, the following occurred:

"Court: Have you a verdict?

"Bolton: We have no verdict, Judge. We have been going over this proof ever since Saturday. We have worked every way we could and it looks like it is impossible for us to reach a verdict.

"Court: Mr. Johnson, how do you feel?

"Johnson: I feel that the man is not guilty, Judge. I cannot find him guilty and give him the death penalty.

"Court: I did not ask you to state that. I just asked you to state how you felt about the case. I am going to discharge you. I do it with great reluctance. Six or seven days have been spent here at tremendous expense to the State. I did not ask the juror to blurt out his feelings about what he had to say about it, but I asked to get an expression as to the chance of a verdict.

"Juror: It is impossible, Judge.

"Court: As I have said, I am going to discharge you after the statement made by the juror.

"Johnson: I am sorry but I misinterpreted what you meant.

"Court: You will be discharged and go into the Clerk's office and receive your pay from him. It is very easy to tell what is in a man's heart when he speaks out as you did."

Another ground upon which the motion to vacate the bench was based is that afterward the court made a statement in the courtroom in substance that a number of ex-convicts had been lobbying around during the trial and if they did not stay away he would have them arrested and ask that they be returned to the penitentiary as having violated the terms of their parole. He also allowed one of the defendants bail, but refused it to this appellant and some others. The third ground is that, during the previous trial, the court had permitted the Commonwealth to introduce much incompetent and prejudicial testimony against the defendant and had refused his counsel permission to make certain avowals, not disclosed in the record.

A motion that the judge decline to sit in the trial of the case because of disqualification through interest, prejudice, or otherwise is deemed to raise a question of jurisdiction. To be available, it must be made at once upon discovery of the facts upon which the disqualification rests; else it will be waived. Accordingly, a motion must be made before an appearance on the merits or a submission of preliminary motions preparatory for trial. Hargis v. Commonwealth, 135 Ky. 578, 123 S.W. 239; Neace v. Commonwealth, 233 Ky. 545, 26 S.W.2d 489; Jones v. Commonwealth, 249 Ky. 502, 60 S.W.2d 991. We are of opinion that the original motion came too late. The grounds of the renewed motion having developed afterward may be regarded as having been seasonably presented.

It is possible that a course of gross misconduct of the trial judge may be such as to justify the conclusion of prejudice against a party. But certainly that was not manifested here. Erroneous rulings in a former trial or action of the court which lay in his judicial discretion may be grounds for setting aside an adverse result, but they do not afford any basis of disqualification to preside at a subsequent trial. We perceive no merit in the grounds submitted as showing bias or prejudice against the defendant on the part of the judge. Hence, the contention of error requiring a reversal of the judgment...