State v. Douglass

Citation23 S.E. 724,41 W.Va. 537
Decision Date07 December 1895
CourtSupreme Court of West Virginia

23 S.E. 724
41 W.Va. 537


Supreme Court of Appeals of West Virginia.

Dec. 7, 1895.

Homicide—Indictment—Change of Venue.

1. The form of indictment for murder, in section 1 of chapter 144 of the Code, again held good for conviction of murder in the first or second degree or any lower grade of homicide.

2. An affidavit for change of venue must state facts and circumstances from which the conclusion is deduced that a fair trial cannot be had, and not merely opinion that it cannot, and the court must be satisfied from those facts that he cannot or may not get such fair trial, and not from conclusions or opinions of the defendant or his witnesses.

(Syllabus by the Court)

Error to circuit court, Greenbrier county. Kenos Douglass was convicted of murder, and brings error. Affirmed.

J. W. Arbuckle and W. P. Rucker, for plaintiff in error.

T. S. Riley, Atty. Gen., for the State.

BRANNON, J. This is a writ of error brought by Kenos Douglass to reverse a sentence of imprisonment for life in the penitentiary imposed upon him by the circuit court of the county of Greenbrier for the murder of Thomas Reed on Christmas night, 1893. Counsel for the prisoner asks us to hold bad the indictment, which is in the form allowed by section 1 of chapter 144 of the Code; the particular defect suggested being the omission to charge the homicide as having been done with premeditation, as one of the essential elements of murder in the first degree. As was said in Baker's Case, 33 W. Va. 330, 10 S. E. 639, we regard the indictment good under several decisions there mentioned, and will not reopen its discussion. It has been so long used and so often approved that the matter ought to have rest.

The refusal to allow a change of venue is relied on as error. The statute requires the accused to show good cause for it. This means that he must show it to the satisfaction of the court. State v. Greer, 22 W. Va. 800. To maintain his motion numerous affidavits were filed, —all, I may say, alike in substance, —stating that the affiants had heard the case much talked about in the county, and that there was a strong prejudice against Douglass, and that, in the opin-

[23 S.E. 725]

ion of affiants, a fair and impartial trial could not be had in Greenbrier county. Are these affidavits, taken alone, without reference to the counter affidavits filed by the state, sufficient to show that the circuit court abused the discretion lodged with it? They show what? First. That the case was much talked about. This is only a basis of opinion that prejudice existed. Second. That there was prejudice, which could only be matter of opinion. Third. That in the opinion of affiants a fair trial could not be had. Now, this all amounts but to an expression of opinion that a fair trial could not be had. There may be public discussion of a case. There always is of murder cases. There may be prejudice, —generally is; but is it so prevalent and widespread that, in spite of the safeguards which the law throws around trials, it may—there is serious danger that it may—prevent a fair trial? No facts are given affording a basis of judgment as to whether such trial can be had. Opinions differ so widely. They spring, with different men, from so many different theories, conjecture, bias, partisanship, or solid ground. There must be facts and circumstances so that legal deductions can be made. In Wormsley's Case, 10 Grat. 658, the evidence...

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