Russell v. Com.
| Decision Date | 29 April 1966 |
| Citation | 405 S.W.2d 683 |
| Parties | Erin Robert RUSSELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
John W. Beard, Bratcher, Rummage, Beard & Flaherty, Owensboro, for appellant.
Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
CULLEN, Commissioner.
Udner a two-count indictment, Erin Robert Russell was found guilty of operating a game of chance and of selling liquor without a license, third offense. He was fined $500 and sentenced to one year in the penitentiary on the gaming charge, and was sentenced to three years in the penitentiary on the liquor charge. Russell previously had received two five-year sentences on other charges, and the judgment in the instant case directed that all of the sentences be served consecutively. Appealing from the judgment, Russell asserts eight alleged errors. We find no merit in any of the grounds of error and we shall state our opinion in summary form.
The court did not err in overruling Russell's motion for a change of venue. The motion was not filed until the morning of the trial, and no previous notice of the motion was given. Two previous trial dates had been set and on both occasions there had been a continuance. There was no claim that the alleged prejudicial conditions in the county were of recent origin or of recent discovery, so as to supply an excuse for Russell's not having earlier made the motion and not having given reasonable notice as required by KRS 452.220. Under these circumstances the trial court properly overruled the motion. See Shelton v. Commonwealth, 280 Ky. 733, 134 S.W.2d 653.
The trial court properly overruled Russell's motion to dismiss the indictment, which motion was based on the alleged fact that the grand jury did not have sufficient evidence before it upon which to base an indictment. Under RCr 5.10 this is not a ground for quashing an indictment.
The trial court properly refused to grant a continuance on account of the claimed unavailability of Russell's wife as a witness, and properly refused to allow Russell's affidavit to be read as the deposition of his wife. The interrogation of the wife's doctor disclosed that the wife was physically able to be present and give testimony in open court, but that the experience might cause her to become emotionally upset. Russell had ample knowledge of the alleged condition for a substantial period of time before the trial date, so he could have arranged to have his wife's deposition taken. The court was justified in its ruling on either of two grounds--that due diligence had not been used to obtain the evidence or that the witness was capable of giving testimony in open court and therefore was not excusably absent.
The evidence for the Commonwealth was that the...
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Thompson v. Com., 87-SC-239-MR
...S.W.2d 653 (1939) that it was not error to deny a motion for a change of venue filed on the day of the trial. See also Russell v. Commonwealth, Ky., 405 S.W.2d 683 (1966). The majority of this Court feels that the delay in filing the motion was due solely to appellant's own actions, and fol......
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