Patton v. Commonwealth
| Decision Date | 24 February 1942 |
| Citation | 289 Ky. 627,159 S.W.2d 1006 |
| Parties | PATTON v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bourbon County; Henry Clay Kauffman Special Judge.
Troy Patton was convicted of murder in the first degree, and he appeals.
Judgment reversed with directions.
Napier & Napier, of Hazard, Calloway W. Napier, and Calloway W Napier, Jr., all of Hazard, and Moss Noble, of Jackson, for appellant.
Hubert Meredith, Atty. Gen., and Jesse K. Lewis, Asst. Atty. Gen for appellee.
VAN SANT, Commissioner.
In the city of Paris, at about midnight between the 4th and 5th days of December, 1940, appellant, Troy Patton, shot and fatally wounded Clifton Arnsparger, deputy sheriff of Bourbon county. At the time of the shooting appellant was accompanied by his brother, Dennis Patton. He was indicted for murder on the 10th day of March, 1941, which was the first day of the next regular term of the Bourbon circuit court. On that day he filed motion, supported by affidavit, requesting the regular judge of the court to vacate the bench on the grounds that he would not afford the defendant a fair and impartial trial and would not impartially decide his application for change of venue. The motion was sustained, and the Honorable Henry Clay Kauffman of Lancaster was designated special judge to preside upon the trial. On the following day defendant filed application and supporting affidavits for change of venue, to which response was filed on the 13th day of March. Evidence was introduced on the motion and the application for change of venue was denied. After exhausting the regular panel in an endeavor to obtain an impartial jury, defendant's motion that jurors be summoned from a county not in the 14th judicial district was sustained, and a special panel was summoned from Fayette county. The trial of the case was actually commenced on the 31st day of March, 1941, completed on the 3rd day of April, resulting in the rendition of a verdict finding the defendant guilty of murder in the first degree and fixing his punishment at death. His motion for a new trial was overruled.
On this appeal he urges five substantial grounds for reversal, which are: The court erred (1) in overruling defendant's motion for a change of venue; (2) in admitting incompetent evidence and refusing to admit competent evidence; (3) in failing, on the request of defendant, to admonish the jury with respect to the purpose for which evidence was introduced of crimes committed by defendant before and after the happening of the homicide; (4) in instructing the jury; (5) in overruling the motion to set aside the swearing of the jury and continue the case because of improper argument of the commonwealth's attorney in his closing argument.
The right to trial by an impartial jury of the vicinage is one of the bulwarks of freedom upon which this nation and each of its independent states were founded, and for one hundred fifty years has been preserved and specifically guaranteed to the citizens of this commonwealth by section 11 of our Constitution. The right to a change of venue is a privilege founded upon the fundamental right of a trial by an impartial jury; consequently, where it appears that the state of feeling at the seat of the court, which would otherwise have jurisdiction, is such as will not afford to the defendant this guarantee, the venue of the trial should be removed to a place where a fair trial may be had upon the determination of a jury whose mind is free of prejudice, not only in respect to the persons charged with the crime, but in respect to the commission of the alleged crime in all its aspects. Full discussion of the principles underlying these rules may be had by reference to the opinions in the following cases: Estes v. Commonwealth, 229 Ky. 617, 17 S.W.2d 757 and Bradley v. Commonwealth, 204 Ky. 635, 636, 265 S.W. 291. In those opinions it was pointed out that the defendant applying for a change of venue has the burden of proving the ground upon which he relies, and that the trial court is vested with a wide discretion in determining the issue; but, such discretion is not an arbitrary one and may be reviewed by this court, and, if upon such review it appears that the discretionary power was not properly exercised, a reversal of the judgment will be ordered. Many opinions from this court on this issue are referred to in the Bradley case, supra, and all of them harmonized in such manner as to render them consistent with the principles hereinbefore referred to. It is therefore unnecessary for us to make further exposition of such principles. In some of the cases referred to above, the unanalyzed statements of witnesses would, as in this case, preponderate against the granting of the application for a change, but, when analyzed and considered in the light of other facts and circumstances which appear in the evidence, this court came to the conclusion that the witnesses introduced by the commonwealth to support its objection to the application were influenced in their opinions by the general prejudice of the community, which fact rendered such opinions of little value in a determination of the issue. We have come to the conclusion that the circumstances surrounding this case place it in that category. The commonwealth introduced 15 witnesses in person, the affidavits of 36 others, and it was stipulated that the direct and cross examination of all the commonwealth witnesses would substantially conform to that of those who personally appeared. Each of the witnesses for the commonwealth stated emphatically that in his opinion the defendant could obtain a trial of his case in Bourbon county at the hands of an impartial jury, and each of them interrogated upon the point claimed that he could sit without bias as a juror in the case; but, their opinions of what would constitute a fair trial do not agree with the principles enunciated in the various opinions of this court. It seems that all the witnesses, or most of them, were of the opinion that the conditions of a fair trial would be met by hasty and expeditious inquest, a verdict of guilty, and punishment fixed at death, because each of them stated that he was qualified and perfectly willing to sit as a juror on the trial, although he had already come to the conclusion that the defendant was guilty and should be punished accordingly. Their conclusion that the defendant could have a fair and impartial trial appears to have been predicated solely on the fact that the citizens of Bourbon county were of such caliber as to decide the case on all issues on the evidence and the law as directed by the court, because at the time they would be selected as jurors they would take oath to do so. Reasonable time and judicious use of space will not permit a review of the evidence of all the witnesses. Our purpose will be served by a discussion of the testimony of the first witness introduced by the commonwealth, which, though more frank than the testimony of the others, shows the inconsistency pervading the testimony of most of the witnesses. Stated briefly, he testified that he had had an opportunity to talk to many citizens representing all parts of Bourbon county; he was of the opinion that defendant could and would receive a fair and impartial trial, based on the instructions of the court as to the law, and upon the evidence developed on the trial; a competent jury could and would be summoned to try the case which would render to the commonwealth and to the defendant a fair and impartial trial; he was familiar with the state of feeling in the county which was such as would not intimidate any person called to serve as a juror; expressions of public feeling were not kindly toward the defendant; there was a time that some people advocated hanging him, but they decided to let the law take its course, and he had advised them so to do; he had a fixed opinion as to the guilt of the accused, "Yes I have made up my mind to that", they were guilty but he had no prejudice against them, "absolutely none", he never saw the people, would not know them if they would walk into the courthouse; and, if he were selected as a juror, he could lay aside any opinion he might have and give the defendant a fair and impartial trial, "absolutely, yes sir." He was then asked if it would take any evidence to overcome his opinion as to the guilt of defendant, whereupon he replied: "Yes sir, it would take a good deal." He was then asked if he thought any amount of evidence would overcome the opinion as to the guilt of the defendant. He replied that if he proved that he was in some place other than Paris that night he would believe that somebody else did the shooting. When asked if he would be willing to consider an alibi that the defendant was in Breathitt county on the night of the killing, he said:
When asked what his state of feeling toward the defendant was, he answered that it was the same as the next morning after he read in the paper that "they had killed this boy"; at that time he thought he was guilty and should be punished accordingly. Immediately after making that statement, he was asked the following questions and made the following answers:
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