State v. Dandy

• Decision Date: 28 March 1967
• Docket Number: No. 12573,12573
• Citation: State v. Dandy, 153 S.E.2d 507, 151 W.Va. 547 (W. Va. 1967)
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Alex DANDY.

Page 507

153 S.E.2d 507

151 W.Va. 547

STATE of West Virginia v. Alex DANDY.

No. 12573.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 31, 1967.

Decided March 28, 1967.

Syllabus by the Court

1. 'The fact that a jury free from exception can be impanelled is not conclusive, on a motion for a change of venue, that prejudice does not exist, endangering a fair trial, and will not justify the court in refusing to receive other evidence to support such motion.' Syl., State v. Flaherty, 42 W.Va. 240 (24 S.E. 885).

2. 'A present hostile sentiment against an accused, extending throughout the entire county in which he is brought to trial, is good cause for removing the case to another county.' Syl. Pt. 1, State v. Siers, 103 W.Va. 30 (136 S.E. 503).

3. Where the petition, exhibits and evidence introduced in suport of a motion for a change of venue establish the fact that widespread hostility and prejudice presently exist against a defendant, a change of venue should be granted notwithstanding that the application therefor is made on the day the case is set for trial and the court has theretofore acted upon various preliminary motions.

Chester Lovett, Charleston, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for defendant in error.

BROWNING, Judge.

The defendant, Alex Dandy, was convicted in the Intermediate Court of Kanawha County, West Virginia, on March 19, 1965, of the offense of being an accessory before the fact in that he did feloniously counsel with, aid and abet one Ruth Maley to make or cause to be made false entries in written accounts kept by the state, and was sentenced to a term of from one to ten years in the penitentiary. A writ of error was refused by the Circuit Court of Kanawha County on November 16, 1965, to which this Court granted a writ of error and supersedeas on May 16, 1966. On the date the case was set for trial defendant filed a petition for a change of venue alleging that: as a result of defendant's long-time residence in Kanawha County he had become extremely well known; four indictments were returned against him in September, 1964, and a fifth was returned in 1965; prior to the return of these indictments many news items appeared in local newspapers and on television and radio stations giving headline coverage to the matters about which the defendant was indicted and to the defendant himself; such publicity related in great part to the so-called 'flood relief fraud cases' and 'dummy corporations' and connected this defendant with such alleged cases; on March 8, 9, and 10, 1965, Ruth Maley, the alleged principal of the offense with which he was charged, was tried and convicted during the course of which trial publicity concerning the defendant was constantly 'rehashed'; during the year 1964 defendant's brother, William Dandy, was charged with a crime in Kanawha County and after a mistrial the said William Dandy was granted a change of venue largely on the basis of his relationship to, and the reputation of, the defendant herein; in the four or five years preceding the indictment the defendant has been the subject of much redicule concerning his alleged connection with a former governor and other high officials of the state; and, the people of Kanawha County have formed a general feeling of guilt and hostility toward the defendant and the defendant cannot receive a fair trial in Kanawha County.

In support of the petition there were attached approximately seventy-five newspaper items and editorials concerning the defendant. While it would serve no purpose to recount them all, the first exhibit appears on April 6, 1963, describing the defendant as a 'mystery man' with high connections and influences with state officials. On September 11, 1963, as an outcome of the first trial of William Dandy, four Charleston policemen were removed from the police force and the defendant's name was given prominent display in the civil service appeal brought by them for reinstatement. Among other exhibits were: several stories relating to a time when the governor and the defendant were in Paris, France, at the same time; newspaper stories bearing captions as follows: on December 3, 1963, 'Alex Dandy Lawsuit Tells of Liaison Efforts in W. Va.'; December 4, 1963, 'Dandy Suit Blamed, Firm Delaying State Location'; December 5, 1963, 'Link With Dandy Denied By Trent'; February 13, 1964, 'Dandy, Plastic Firm Settle Suit'; April 17, 1964, 'Alex Dandy's Head Injured'; August 6, 1964, 'Bitter Dandy Is Leaving, Raps Press'; October 1, 1964, began the so-called flood relief probe by the grand jury which relates to the investigation of the Pioneer Construction Company, a corporation principally owned by the defendant. On October 15, 1964, indictments were returned, including those against the defendant, and in an accompanying news story the Paris 'coincidence' was restated and contained the comments of the grand jury as to kickbacks and dummy corporations. Thereafter the newspaper articles and editorials appeared almost daily with some reference to the defendant; both political parties attributed various connections between the defendant and the opposing political candidates; libel suits were filed based on such allegations; a reward was offered for one John Stanton, a joint indictee of the defendant; and there was daily coverage of the Maley trial and constant references to the defendant herein were published.

In addition to these exhibits and in support of his petition for a change of venue the defendant called thirty-three witnesses, lawyers, businessmen, judges, etc., all of whom testified that the defendant's reputation was such that he could not obtain a fair trial in Kanawha County. In opposition to the motion the state called thirteen people, prominent in the community, who testified substantially to the contrary. The petition for a change of venue was overruled and the case proceeded to trial. Inasmuch as it is the view of this Court that the decisive issue upon which a determination of this case turns is the ruling of the trial court in denying the defendant a change of venue, it would serve no purpose to recite the evidence in the case and it is unnecessary, and perhaps in appropriate, to discuss the other assignments of error.

Article III, Section 14 of the constitution of this state provides, insofar as pertinent, that 'Trials of crimes, and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offence was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county. * * *' In its earliest decisions interpreting this section this Court held that only the defendant was entitled to have the situs of a trial removed from the county wherein the defendant was indicted and then only upon a showing by him of good cause. This is the third syllabus point of State v. Greer, 22 W.Va. 800: 'The burden is on the prisoner to show to the satisfaction of the court, good cause to have the trial of the case removed; and such cause must exist at the time the application is made.' In the Greer opinion the court cited Wormley's Case, 10 Gratt. 658, and commented as follows: 'The court of appeals held, that upon an application of a prisoner charged with murder for a change of venue his affidavit alone of his fears or belief, that he cannot obtain a fair trial in the county, is not sufficient to sustain the motion; but he should be required to show by independent and disinterested testimony such facts, As make it appear probable, at least, that his fears and belief are well founded. (Italics supplied.) But where such facts are shown by the prisoner and are not successfully repelled or explained by the commonwealth, no argument of inconvenience or delay should be permitted to stand in the way of the great end to be attained, a fair and impartial trial.' This further statement is contained in the opinion of the Greer case: 'While it is true that the witnesses, who testified that they believed the prisoner could have a fair and impartial trial, were more numerous than those who testified to the contrary belief, yet Their affidavits in many cases contain no reason for such belief. Taking all the evidence and circumstances surrounding the case, it seems to us, the court erred in overruling the motion to change the venue. If the right secured to the citizen, amounts to anything, we can scarcely conceive of a stronger case for its exercise than the case before us.' (Italics supplied.)

There have been many decisions by this Court upon this issue, some sustaining the trial court and others reversing upon the ground that the trial court had abused its discretion. Some, but by no means all, of those decisions will be referred to hereinafter. However, at this point we believe it necessary, if this opinion is to serve its primary purpose, to recite at least a brief re sume of the testimony of the principal witnesses for both the defendnat and the state.

The following witnesses for the defendant after being qualified were all asked substantially the same question, that is, whether or not at that time the defendant Alex Dandy could obtain a fair trial in the Intermediate Court of Kanawha County upon the charges contained in the indictment relating to the so-called 'flood relief fraud' cases. Therefore, the principal question will not be repeated as to each witness. Charles Hurt, a life-long resident of Kanawha County and a practicing attorney in the City of Charleston, replied to the principal question: 'I don't believe he can.' He then testified as follows: 'Q. Why do you feel he can't get a fair trial by a jury in this Court? A. Because of the adverse publicity he has received in the last several years, the general consensus of opinion in the community. Q. What kind of publicity? A. Newspaper, television, Radio. ...