Smith v. Commonwealth

• Decision Date: 26 October 1897
• Citation: 42 S.W. 1138
• Parties: SMITH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

42 S.W. 1138

SMITH v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 26, 1897

Appeal from circuit court, Monroe county.

"Not to be officially reported."

Jonathan Smith was convicted of manslaughter under an indictment for murder, and appeals. Affirmed.

Sherman Spear, M. T. Flippin, Boles & Duff, and D. R. Carr, for appellant.

W. S Taylor, for the Commonwealth.

WHITE J.

At the June term of the Monroe circuit court, 1897, the grand jury of said county returned an indictment charging the appellant Jonathan Smith, with the crime of murder by feloniously shooting and killing Joe Patterson, and at the same term of said court he was tried, convicted, and sentenced to the penitentiary for the period of 19 years; and, having filed reasons and motion for new trial, and the same having been denied him, he has appealed the case to this court, and asks a reversal. The facts, as developed in this case by the evidence, are that on the morning of the killing of Patterson by the appellant, the appellant had been to a neighbor's house to get a horse he was having pastured, and on his return home, in passing a wood near his house, he was attacked and shot at twice by a man named John Roberts, who seems to have been an enemy of the accused.

The accused, being unarmed, fled, and went to his house, and procured his gun, and returned to near the place where Roberts had shot at him, and, discovering, some one he says he took to be Roberts, near a fence, the accused took aim and fired, and killed the deceased, Joe Patterson, the ball striking him near the left eye, passing through his head, killing him instantly. Patterson was a deputy sheriff, and an exemplary young man, and from the evidence had no connection whatever with the difficulty between the accused and Roberts. The accused was arrested in the state of Tennessee, and lodged in the jail at Thompkinsville on Friday before the circuit court met on the Monday following, and on Tuesday the indictment was returned by the grand jury. The accused gave notice, and filed his petition asking a change of venue to some other county, setting forth that on account of the killing of Patterson, who was a young man of great popularity, and a member of a large and influential family, and on account of excitement and prejudice against him, he could not obtain a fair trial in the county of Monroe. In support of this motion, he filed the affidavit of two housekeepers of Monroe county, not of kin or counsel for the accused, stating that they believed the facts set forth in the petition of the accused were true. Accused filed an amended petition for change of venue. The record fails to show that the court acted on the petition of appellant for change of venue, and, there being no ruling of the court on his application, it must be deemed by this court that the accused had abandoned his application for change of venue. The accused then filed his affidavit, and moved the court to continue the case on account of the state of public opinion in Monroe county against him, and on account of the absence of witnesses named; and the commonwealth's attorney assented that affidavit might be read and taken as true, subject to competency; and thereupon the court overruled the motion for a continuance; and to the refusal of the court to grant him a continuance the defendant excepted, the commonwealth's attorney having assented to the statements of the witnesses as shown by the affidavit as true, if competent.

The court properly refused to continue the case on account of the absence of witnesses. We know of no rule of law that would authorize the court to continue a case on account of prejudice and excitement against the accused. This must be left with the trial judge, and this court could not and would not interfere unless there was a palpable abuse of discretion; and this abuse of discretion should appear by other evidence than the affidavit of the accused. The trial judge, being present, must be presumed to know the surroundings, and the state of public feeling, to some extent, at least.

At the conclusion of the evidence of the commonwealth the defendant offered to read to...