Stamp v. Com.

• Citation: 243 S.W. 27,195 Ky. 404
• Parties: STAMP v. COMMONWEALTH.
• Decision Date: 23 June 1922
• Court: Kentucky Court of Appeals

243 S.W. 27

195 Ky. 404

STAMP v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Jefferson County, Criminal Division.

Walter P. Stamp was convicted of murder, and sentenced to death, and he appeals. Reversed for a new trial.

Clem Huggins and Merit O'Neal, both of Louisville, and M. M Logan, of Bowling Green, for appellant.

Chas I. Dawson, Atty. Gen., and Thomas B. McGregor, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

Under an indictment returned June 3, 1921, by the grand jury of Jefferson county, charging him with the crime of murder, the appellant, Walter P. Stamp, was July 1, 1921, subjected to trial in the Jefferson circuit court, criminal division which resulted in the return of a verdict by the jury finding him guilty of the crime charged and fixing his punishment at death. Following the overruling of his motion and grounds for a new trial, sentence was pronounced upon the appellant, and judgment entered by the court in accordance with the verdict. He prayed and was granted an appeal by the trial court, his prosecution of which brings to us for review the judgment and various rulings of that court complained of.

The person alleged to have been murdered was J. Smith Russell, who, according to the evidence of the commonweath, while riding on the night of June 1, 1921, with his wife and child in an automobile on the Third Street boulevard, near and south of the corporate limits of the city of Louisville, was instantly killed, his wife wounded, and their child attempted to be killed, by a shot or shots fired at each of them from a pistol in the hand of appellant, who was also riding at the time in an automobile which, overtaking that occupied by Russell, his wife, and child, ran ahead of and forced it to deflect and strike a tree, at which time the shooting was done. Further evidence in behalf of the commonwealth conduced to identify appellant as the person who did the shooting and establish a motive therefor and previous threats made by him against both Russell and his wife. Upon the conclusion of the commonwealth's evidence, the appellant declined to introduce any evidence, and, apparently because of his having been forced into trial by the court, announced, through his counsel, a peremptory refusal to do so.

Although additional grounds were urged by appellant on his motion for a new trial in the court below, only the following were relied on in argument for the reversal sought of the judgment, viz.: Error of the trial court (1) in the refusal of the judge thereof to vacate the bench; (2) in refusal of the court to grant the appellant a change of venue; (3) in overruling his motion for a continuance; (4) in refusing him a new trial.

The motion of the appellant and affidavit filed in support thereof, seeking to have the judge of the Jefferson circuit court, criminal division, vacate the bench on and during his trial under the indictment for the murder charged, were based on section 968, Kentucky Statutes, which, as amended by Act of March 22, 1902, provides:

"When, from any cause, the judge of the circuit court fails to attend, or being in attendance cannot properly preside in an action, proceeding or prosecution pending in said court, or if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the parties, by agreement, may elect one of the attorneys of the court to preside on the trial or hear the application, or hold the court for the occasion; and if any of the parties to said action, proceeding or prosecution be or are nonresident defendants, who have not entered their appearance, nor have been summoned, or are infant defendants, the attorney appointed to defend for such nonresidents or the guardian ad litem for such infants, may agree with the other parties to such action, proceeding or prosecution, upon a lawyer having all the qualifications of a circuit judge to try such action, proceeding or prosecution."

See, also, Crim. Code, § 52.

It will be observed, from the language of the statute, that, in order to obtain the removal from the bench of the judge charged by law with the duty of presiding at his trial, the accused must file an affidavit to the effect that he will not afford him a fair and impartial trial, or rule fairly and impartially upon an application from him for a change of venue. In numerous cases construing this statute we have held that the affidavit will be insufficient to procure the vacation of the bench by the judge, if it merely states by way of conclusion, or even in the language of the statute, only the belief of the accused that such judge would not afford him a fair and impartial trial, or in like manner pass on his application for a change of venue. The affidavit must set forth the facts upon which the accused rests his belief that the judge will not give him a fair trial or impartially pass on his application for a change of venue, and thereby disclose the bias or prejudice of mind he apprehends from the latter. In brief, the facts stated in the affidavit must be of a character that will show, not only that the bias, prejudice, or personal hostility on the part of the judge toward or against the accused exists, but that it is of a character calculated to seriously impair his impartiality and sway his judgment, and, if such be the showing made, it would disqualify the judge to preside on the trial, and should prevent him from doing so. Tolliver v. Commonwealth, 165 Ky. 312, 176 S.W. 1190; Sparks v. Colson, 109 Ky. 711, 60 S.W. 540, 22 Ky. Law Rep. 1369; Rush v. Denhardt, 138 Ky. 238, 127 S.W. 785, 29 L. R. A. (N. S.) 675; McDonald v. Wallsend Coal Co., 135 Ky. 624, 117 S.W. 349; Massie v. Commonwealth, 93 Ky. 588, 20 S.W. 704, 14 Ky. Law Rep. 564; Hargis v. Marcum, 103 S.W. 346, 31 Ky. Law Rep. 795; French v. Commonwealth, 97 S.W. 427, 30 Ky. Law Rep. 98; Erwin v. Benton, 120 Ky. 536, 87 S.W. 291, 27 Ky. Law Rep. 909, 9 Ann. Cas. 264, 909; Ky. Journal Co. v. Gaines, 139 Ky. 747, 110 S.W. 268, 33 Ky. Law. Rep. 402.

The words "bias," "prejudice," and "hostility," as here used, refer, of course, to the mental attitude or disposition of the judge toward the appellant, and not to any views he may entertain respecting the crime with which the latter was charged, for, manifestly, a judge's abhorrence of crime will not be held to disqualify him to preside at a criminal trial; nor will he be disqualified by holding an unexpressed opinion as to the gunt or innocence of one on the trial of whose case it is his duty to preside, or because of his having shown a disposition to punish others charged with a similar crime.

In Chreste v. Commonwealth, 178 Ky. 311, 198 S.W. 929, although the opinion deals most elaborately with the question under consideration and reviews the numerous authorities bearing thereon, including those above cited, it does not, as counsel for the commonwealth seems to think, in declaring what an affidavit seeking to require a judge to vacate the bench should contain, announce a rule differing in any respect from that announced in the cases, supra, but is in line with them in holding that an affidavit, to be sufficient under section 968, Ky. Stats., to require a judge to vacate the bench, must show by reason of bias or prejudice his disqualification to preside on the trial of the case, and that the mere fact that he had made some adverse ruling affecting the defendant, and entertained a conviction respecting a principle of law involved in the latter's case, or had shown a disposition to punish others charged with misconduct similar to that for which he was being tried, furnished no cause for his vacating the bench on the defendant's trial.

In a number of the cases, supra, and others decided by this court, it was held that, when the facts are stated in an affidavit seeking to have the judge vacate the bench, their truth must be accepted by the latter and cannot be put in issue by him; but it is his duty to determine whether they are sufficient to require him to vacate the bench, and his decision of the question is subject to appeal. Powers v. Commonwealth, 114 Ky. 237, 70 S.W. 644, 1050, 71 S.W. 494; Rush v. Denhardt, 138 Ky. 238, 127 S.W. 785, Ann. Cas. 1912A, 1199; Vance v. Field, 89 Ky. 178, 12 S.W. 190, 11 Ky. Law Rep. 388; Sparks v. Colson, 109 Ky. 711, 60 S.W. 540, 22 Ky. Law Rep. 1369; Chreste v. Commonwealth, 178 Ky. 311, 198 S.W. 929.

With the law thus stated and understood, it remains to be determined by an application of its principles to the facts contained in the affidavit of the appellant in support of his motion that the presiding judge vacate the bench on and during his trial, whether they were sufficient to require this court to adjudge that they should have prevented him from doing so. The great length of the affidavit renders its insertion in the opinion as a whole impracticable; therefore only such of its contents as are material to the decision of the question presented by the motion it was intended to support will be set forth and considered. Omitting its preliminary formal parts, it substantially states that beginning immediately after the commission of the crime with which the appellant was charged and continuing down to the time of his trial therefor, the judge of the Jefferson circuit court, criminal division, charged by...