Sullivan v. Commonwealth
| Decision Date | 03 May 1916 |
| Citation | 185 S.W. 134,169 Ky. 797 |
| Parties | SULLIVAN v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Russell County.
Scott Sullivan was convicted of crime, and appeals. Affirmed.
C. F Montgomery, of Liberty, Thomas Z. Morrow, and James N Meadows, of Jamestown, for appellant.
M. M Logan, Atty. Gen., O. S. Hogan, Asst. Atty. Gen., A. A Huddleston, of Burksville, and R. E. Lloyd and Lilburn Phelps, both of Jamestown, for the Commonwealth.
Scott Sullivan and others were indicted for the crime of confederating and banding themselves together for the purpose of intimidating, alarming, and disturbing another person. On a separate trial he was found guilty by the jury and his punishment fixed at confinement in the penitentiary for not less than one year and not more than one year and a day. He appeals.
Briefly stated, the facts are as follows: Erastus Antle held the office of justice of the peace in the county of Russell. Pursuant to affidavits filed under subsection 1, § 2572b, Kentucky Statutes, he issued a search and seizure warrant against one Vernon Bradshaw. The warrant was placed in the hands of a deputy sheriff of Russell county, who went to the home of Bradshaw and there discovered and took from the latter's possession a keg of whisky, which he delivered to Antle, the justice of the peace, on May 26, 1915. About 2 o'clock on the morning of May 29th following, several men, wearing masks and carrying pistols and shotguns, came to the home of Antle in a body. When they arrived they threatened to kill Antle and all others residing in that locality if the whisky was not delivered. They broke the doors of Antle's home and continued to fire their weapons and curse and threaten Antle until he complied with their demands and turned over the keg of whisky. Antle identified appellant as one of the parties. It further appears that the Antles had been informed of the coming of the party, and that Sen. Robert Antle, a brother, and two sons of the justice of the peace, together with a man by the name of Wright, armed themselves and remained on guard for the purpose of defending the Antle family against the attack. Mr. Wright and one of the Antle boys stationed themselves near a road, while Sen. Robert Antle and the other boy took another position. The marauders came down the road where Mr. Wright and the Antle boy were stationed and stopped within a few feet of them. Appellant and others were identified by Wright and the Antle boy as being members of the band. There is also other evidence tending to connect appellant with the crime.
Appellant's defense was an alibi. He claims that he stayed at the home of Price Bradshaw on the night in question. He went there to work for Bradshaw the following day. He reached the Bradshaw home after the entire family had retired for the night. About 12 o'clock four men appeared at the home of Bradshaw and asked for him. Mr. Bradshaw arose and went out to ascertain what the men came for. They wanted to know if Vernon Bradshaw had returned. Mr. Bradshaw directed appellant to go out and see the men and find out if he could give them the information they desired. Appellant then joined the men in Bradshaw's barn and remained with them for something like three hours. Appellant's story is corroborated by the men who called at the Bradshaw home, as well as by Price Bradshaw and his family.
The first ground urged for reversal is the refusal of the trial court to consider defendant's application for, and to grant, a change of venue. The statute regulating changes of venue in criminal cases provides, in substance, that the application, if made by the defendant, must be made by petition in writing, verified by the defendant; and the applicant must produce and file the affidavits of at least two other credible persons, not of kin to nor of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county or counties objected to, and that they verily believe the statements of the petition for such change of venue are true; and the attorney for the commonwealth, or in his absence from the county the county attorney, must have reasonable notice in writing of such application. It further provides that the application must be made and passed on in open court, during a regular or called term, and the court on said motion shall hear all the witnesses produced by either party, and from the evidence determine whether or not the applicant is entitled to a change of venue. Section 1110 of the Kentucky Statutes. In the case under consideration, defendant's application for a change of venue was not made by petition filed in open court. It was filed in the clerk's office. The affidavits filed in support thereof did not state that the affiants verily believed the statements of the petition to be true. While it is true that notice of the intended application was...
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...Boreing v. Wilson, 128 Ky. 570, 108 S.W. 914, 33 Ky. Law Rep. 14; Hargis v. Marcum, 103 S.W. 346, 31 Ky. Law Rep. 795; Sullivan v. Commonwealth, 169 Ky. 801, 185 S.W. 134; Adams v. Gardner, 176 Ky. 257, 195 S.W. 412; Hargis v. Commonwealth, 135 Ky. 578, 123 S. W. When a statute has been con......
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