State v. Parmenter
| Decision Date | 07 January 1905 |
| Docket Number | 13,726 |
| Citation | 70 Kan. 513,79 P. 123 |
| Parties | THE STATE OF KANSAS v. CHARLES GRAYSON PARMENTER |
| Court | Kansas Supreme Court |
Decided January, 1905.
Appeal from Bourbon district court; WALTER L. SIMONS, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PRACTICE, DISTRICT COURT--Change of Venue. The fact that a large number of the inhabitants of the county may be prejudiced against the defendant will not justify a change of venue on the ground of local prejudice if the remainder of the people of the county are free from prejudice and the defendant may still have a fair trial within the county.
2. PRACTICE, DISTRICT COURT--Prejudice of Trial Judge. The prejudice of the judge, which is made a statutory ground for change of venue in a criminal case, refers to his prejudice against a party, and not to an opinion that the judge has formed, or is believed to entertain, upon a legal question arising in the case.
C. C. Coleman, attorney-general, C. B. Griffith, county attorney, and J. M. Humphrey, for The State.
J. I. Sheppard, and A. L. H. Street, for appellant.
OPINION
Charles Grayson Parmenter, who killed Frank T. Bruner, was prosecuted upon a charge of murder in the first degree, convicted of murder in the second degree, and sentenced to the penitentiary for a term of thirteen years. Upon his appeal he complains of rulings made upon applications for change of venue. He first applied for a change to a county other than Bourbon, where the homicide occurred, because of the prejudice of the people of that county against him. As manifestations of local prejudice he showed that after the preliminary examination the officers, fearing mob violence, removed him to the jail of an adjoining county, and also that full accounts of the tragedy had been published in the local papers.
In support of his application appellant filed many affidavits of people of Fort Scott, where Bruner was killed, and of some residing in other parts of the county, that prejudice existed against Parmenter, and that in their opinion a fair trial could not be had in the county. In most of them there was a statement to the effect that for years Parmenter had been accused of open and notorious violations of the prohibitory liquor law, which affiant believed had caused a deep-seated prejudice against him in the minds of the people. Numerous residents of the county, many of whom lived outside of Fort Scott, testified in behalf of the state to the effect that no prejudice of which they were aware existed against the defendant, and that in their judgment he could have a fair trial in the county. There was testimony, also, that the excitement created by, and which immediately followed, the homicide had subsided and that outside of a few friends of the deceased Bruner the people were desirous that a fair and impartial trial be given to the defendant.
The fact that a part or a large number of the people of a county may be prejudiced against the defendant does not warrant a change of venue, if the other residents are free from prejudice and the defendant may still have a fair and impartial trial in the county. It is not enough that prejudice against the defendant exists; but, as the statute provides, it must exist to such an extent "that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be had therein." (Crim. Code, § 174; Gen. Stat. 1901, § 5616.) In Fort Scott, and the immediate vicinity, many of the people may have been disqualified to act as jurors; but that city is on the eastern border of the county, and witnesses living fifteen to twenty miles from the city said that in their communities they found no prejudice against the defendant. It does not appear that any difficulty was experienced in obtaining an unprejudiced and qualified jury in the county, and no complaint is made of the jury that tried him, or of the verdict which they returned against him. The numerous statements that he had been charged with violations of the prohibitory liquor law do not go far to establish prejudice. Opposition to the business in which he may have been engaged is not necessarily antagonism to him, although the business is illegitimate; at least, it is not the equivalent of disqualifying prejudice.
In passing upon this phase of the case, and the condition of local sentiment in the county, the trial court remarked:
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