Shipp v. Commonwealth

• Citation: 124 Ky. 643,99 S.W. 945
• Parties: SHIPP v. COMMONWEALTH.
• Decision Date: 20 February 1907
• Court: Court of Appeals of Kentucky

99 S.W. 945

124 Ky. 643

SHIPP v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 20, 1907

Appeal from Circuit Court, Taylor County.

"To be officially reported."

James A. Shipp was convicted of murder, and he appeals. Reversed and remanded.

McQuown & Brown, Hazelrigg, Chenault & Hazelrigg, and H. S. Robinson for appellant.

Jeff Henry, N. B. Hays, and C. H. Morris, for the Commonwealth.

NUNN J.

On January 3, 1906, appellant was indicted by the grand jury of Taylor county for the murder of Joe A. Smith. On the same day appellant filed his petition for a change of venue accompanied by the affidavits required by the statutes. After hearing proof the court, on the ninth day of the January term, 1906, overruled the motion for a change of venue, and the defendant (appellant) was given until the April term to file his bill of exceptions. At that term of the court he filed his bill of exceptions, and renewed his motion for a change of venue, which was overruled. The case then proceeded to trial, resulting in the conviction of appellant to the state penitentiary for the term of his natural life. The facts of the commonwealth, as shown by the testimony for the commonwealth, were about these: On the morning of December 1 1905, appellant left the home of his sister in Phillipsburg, and boarded a train for Campbellsville. Arriving there, and while walking down the street, he discovered Smith, the deceased, standing some distance down the street on the opposite side. Appellant then entered a store near by, where he rented a gun for one hour's time (without informing the clerk, however, for what purpose he wanted it), loaded it, placed it under his arm, with muzzle pointing downward, walked down and across the street to where deceased was standing, and shot him in the left breast, killing him almost instantly. The proof for the commonwealth indicates that neither spoke a word. Appellant, however, testified that upon approaching the deceased, he asked him, "Why did you ruin my home?" and then shot him. After the shooting appellant at once sought out the county judge at his place of business, surrendered, and was placed in jail, where he has remained since. Appellant's plea was not guilty, his real defense being insanity. He had been in a bad state of health for two or more years previous to the homicide. His afflictions, a disordered stomach, severe pains in the back of the head and neck, hay fever in the fall season of each year, annoyed him very much. About two months before the killing he began to suspect an undue intimacy between the deceased, Smith, and his (appellant's) wife. From that time on his physical and mental troubles and derangements seemed to become more aggravated and pronounced. He abandoned his business, traveled aimlessly about, roving from place to place, apparently unbalanced in mind. He claimed to have converse with God, walked upon the highways gesticulating wildly and talking aloud to himself, often sitting for a long time in public places, with his face buried in his hands, weeping bitterly, and, when asked the cause of his trouble, would reply that his home had been ruined. On Saturday preceding Monday, the day of the killing, he claims his wife confessed to him her infidelity and improper conduct with Smith. He immediately left his home at Campbellsville and went to Phillipsburg to his sister's, as stated, returning about noon of Monday, the day of the killing. This was the first time he had seen Smith after the confession of his wife to him. From this judgment of conviction he has appealed, and the case was submitted for decision on the 25th of January, 1907.

Appellant assigns the following errors: First, the refusal of the circuit court to change the venue on appellant's motion. Second, the admission of incompetent evidence against appellant, and rejecting competent evidence offered by him. Third, that the court erroneously instructed, and refused to properly instruct, the jury. Fourth, the court's refusal to discharge the jury on account of the misconduct of counsel for the commonwealth during the trial.

We will take up the errors complained of in the order named.

The petition for a change of venue alleged in substance the following facts: That Smith, deceased, was extensively related in Taylor county; that his relatives were influential and prominent citizens, so numerous that there was not a precinct in the county where some relatives of Smith did not reside; that they were extremely hostile to appellant, and since the homicide, had been active in framing public sentiment against him; that they had so diffused highly colored reports purporting to be the facts of the homicide that the citizens liable to jury service, the better element of jurors of Taylor county, had formed opinions as to the guilt of appellant; that, on account of the undue influence of Smith's relatives, the harsh and bitter feeling engendered against him by a concerted prosecution, he could not get a fair and impartial trial in Taylor county. Three citizens of the county, who stated that they were acquainted with the public opinion prevailing in the county, and that they verily believed the statements of the petition were true, in their respective affidavits, filed as required by statute, expressed it as their opinion that appellant could not get a fair trial in Taylor county. On the hearing of the motion for a change of venue a dozen or more witnesses were introduced on each side. Most of the commonwealth witnesses who testified on the hearing of this motion resided in or near Campbellsville, and few of them, if any, claimed to know the public sentiment in the county with reference to the prosecution, but each of them gave it as his opinion that appellant could obtain a fair trial; several of them stated that they knew the people of the county, and that they believed they would give any man a fair trial upon any charge. All the witnesses, however, agreed that the relatives of the deceased were prominent and influential, very numerous, some one or more of them residing in every precinct in the county. Many of the appellant's witnesses were persons whose business required them to travel over the county a great deal, who stated that they were acquainted with the public sentiment in the county existing against appellant with reference to the killing; that it was strong against him; that lawyers of the town had been advised not to engage in his defense; that to do so would greatly injure their business; that they heard several people express themselves that Shipp ought to be hung; that the Shipps had killed enough people. One witness stated that "the Shipps for 14 generations had died with their boots on, and that that fact was pretty generally known." Another stated: "I have heard considerable discussion about this killing, and among those who claim to have heard the facts, or know the facts, the sentiment is pretty general that Shipp ought to be punished. I have heard some people speak bitterly of him." Some of them also testified that appellant's wife was very extensively related throughout Taylor county, and that her people were very bitter against him. They all agreed that it was their opinion that appellant could not have a fair and impartial trial in the county, and some of the witnesses stated that they heard people say that "Shipp ought to hang, crazy or not crazy." Construing the statute providing for a change of venue, this court has announced the rule to be that, when the petition and affidavits comply with the statute, a prima facie case is thus made, and, in the absence of other evidence, it is the duty of the court to change the venue. See Higgins v. Commonwealth, 94 Ky. 54, 21 S.W. 231, and Wilkerson v. Commonwealth, 88 Ky. 29, 9 S.W. 836. The petition and affidavits filed in this case made out a prima facie case, and we are of the opinion that the evidence of the commonwealth did not overthrow it, but that the oral testimony on the whole strengthened it. In Bowman v. Commonwealth, 96 Ky. 8, 27 S.W. 870, the venue was directed to be changed by this court. It was there said: "The witnesses for the state, who think that appellant could obtain a fair trial, all save one or two, concur in the statement that all those who had spoken on the subject regarded the shooting as a bad murder. * * * The witnesses for the defense, many, and perhaps all, of them, having but little interest in the defendant, he having lived in the county but a short time, stated that he could not have a fair trial by reason of the prejudice against his case, and the influence of those connected with the deceased." As in this case all the witnesses for the state concur in the statement that the belief was general that the homicide was a bad murder, and that appellant ought to be hung, or severely punished. From the statements of many witnesses it appears that many people in the county regarded the Shipp name as odious. It was common talk that the Shipps had killed enough people; that they had died with their boots on for many generations; that it only lacked a leader to form a mob that would have hanged appellant, crazy or not crazy. In view of this evidence, we are of opinion that the circuit court erred in not granting the venue asked for. The language of the statute is plain. It says that an application for a change of venue is to be granted "if it appears that the defendant cannot have a fair trial in the county where the proceeding is pending." In this case appellant has filed a petition for a change of venue, accompanied by the affidavits required by the statute. As we have seen, he had a prima facie case made out, and, when the commonwealth resisted the motion, and introduced oral testimony, then it was the duty of the court to weigh...