Saylor v. Commonwealth

• Decision Date: 08 May 1914
• Citation: 166 S.W. 254,158 Ky. 768
• Parties: SAYLOR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

166 S.W. 254

158 Ky. 768

SAYLOR v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 8, 1914

Appeal from Circuit Court, Magoffin County.

Denny Saylor was convicted of voluntary manslaughter, and he appeals. Reversed and remanded for new trial.

D. G Sublett and D. D. Sublett, both of Salyersville, and W. W Ferguson, of Wheelersburg, for appellant.

James Garnett, Atty. Gen., and D. O. Myatt, of Frankfort, for the Commonwealth.

SETTLE J.

The appellant, Denny Saylor, was indicted in the Magoffin circuit court for killing Mack Bailey. The indictment contained two counts; the first charging him with willful murder, and the second charging him with conspiring with one Bud Collins to kill Bailey. He was tried at the May term, 1913, but the jury then disagreed and did not return a verdict. The commonwealth, complaining of the refusal of the lower court to give an instruction on that trial upon the law of voluntary manslaughter, prosecuted an appeal from the ruling in question to obtain this court's decision and certification of the law thereon. It was held on that appeal that the circuit court erred in refusing to give the instruction on voluntary manslaughter, and in the opinion directed that such instruction be given upon another trial of the case. Com. v. Saylor, 156 Ky. 249, 160 S.W 1032. Following that decision and its certification to the circuit court as the law of the case, appellant was again tried under the indictment, the trial resulted in a verdict finding him guilty of voluntary manslaughter, upon which judgment was entered, fixing his punishment at confinement in the penitentiary not less than 2 nor more than 21 years, as provided by the Indeterminate Sentence Law (Laws 1910, c. 4). Having been refused a new trial, he has appealed.

The first ground urged for a reversal is that the trial court erred in refusing appellant a change of venue. The application for such change was made by petition in which it was in substance stated that, immediately following the killing of Bailey, there was such excitement in Magoffin county over the homicide, that the state militia were called into service to assist the sheriff of the county to make arrests and prevent mob violence; that Bailey was related to the county judge, county attorney, sheriff, and circuit court clerk of Magoffin county, and that these officers, with other relatives of the decedent, after the killing interested themselves in creating public sentiment against appellant, with a view of obtaining his conviction, because of which and the prejudice existing against him in the county he could not obtain a fair and impartial trial therein. The petition was supported by the affidavits of two disinterested residents of the county, not related to nor of counsel for appellant, who expressed the opinion that by reason of the facts set forth in the petition appellant would be unable to obtain an impartial trial in Magoffin county. The allegations of the petition and statements contained in the affidavits in support thereof were specifically denied by a pleading entitled "Answer and Response," filed by the commonwealth's attorney; and controverted by the affidavits of certain citizens of the county, filed at the same time.

We have repeatedly held that the decision of the trial court, either in granting or refusing a change of venue in a criminal case, will not be disturbed unless it was based upon some ground not authorized by the statute or amounted to an abuse of discretion; and this is particularly so when the evidence for and against the change was so conflicting as to make it difficult to determine on which side it preponderates. Mount v. Com., 120 Ky. 398, 86 S.W. 707, 27 Ky. Law Rep. 788; Fletcher v. Com., 123 Ky. 571, 96 S.W. 855, 29 Ky. Law Rep. 955; Penman v. Com., 141 Ky. 660, 133 S.W. 540; Martin v. Com., 100 S.W. 872, 30 Ky. Law Rep. 1196. The rule announced must be applied in this case, for it is not apparent from the evidence appearing in the record that the refusal of the change of venue complained of by appellant was an abuse of discretion on the part of the trial court.

Appellant's second ground for a reversal is that the trial court erred in refusing to peremptorily instruct the jury to find him not guilty; it being his contention that there was no evidence conducing to prove his guilt. In order to properly pass on this contention, careful consideration of the evidence appearing in the record will be required. As the opinion in Com. v. Saylor, supra, contains an elaborate statement of all the evidence introduced by the commonwealth and appellant on the first trial of the case, and a comparison thereof with the evidence furnished by the record on this appeal shows it to have been substantially the same on both trials, it is deemed unnecessary to here reproduce it in detail. It is conceded by counsel for the commonwealth that Bud Collins, a cousin of appellant, shot and killed Bailey, but insisted that appellant conspired with Collins to commit the crime and aided him in its commission. The evidence furnishes a motive on the part of Collins for the killing, as it shows that he and Bailey were waiting upon the same girl, and that at a gathering at the home of Collins' uncle and appellant's father, which took place two or three nights before the homicide, a difficulty occurred between Collins and Bailey because of the girl's apparent preference for Bailey. Appellant, however, according to the evidence, took no part in that difficulty, but, on the contrary, was then prior thereto, and down to the time of the killing, on friendly terms with Bailey. The following evidence is relied on by the commonwealth as tending to show the alleged conspiracy between appella...