Tinsley v. Com.
| Decision Date | 25 March 1955 |
| Citation | 283 S.W.2d 362 |
| Parties | Elmer TINSLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Chat Chancellor, Frankfort, for appellant.
J. D. Buckman, Jr., Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.
Appellant, Elmer Tinsley, was jointly indicted with his brother, Gilbert Tinsley, for the offense of grand larceny. Gilbert Tinsley, upon a separate trial, was convicted of that crime and received two years in the penitentiary. We affirmed the judgment on an appeal by him in Tinsley v. Commonwealth, Ky., 261 N.W.2d 11. Appellant was thereafter tried and convicted on the same charge and the punishment imposed by the jury was confinement in the state penitentiary for a period of one year.
Reversal of the judgment is sought: (1) Because of the failure to grant a change of venue; (2) because of refusal to give a directed verdict for appellant at the close of all the evidence; (3) because it is claimed incompetent evidence was admitted; and (4) because of so-called improper argument by the Commonwealth's attorney before the jury.
In the petition for a change of venue it is avowed the prosecuting witness, Laban Jackson, whose sheep were stolen, is an influential citizen in the business, financial, social and political affairs of Shelby County, with relatives and friends scattered among a large proportion of the people of the county; that passion and prejudice have been aroused because of the widespread theft of sheep and other livestock in the county; and that in view of the prosecuting witness' varied and extensive connections and by reason of the state of the then existing public opinion appellant could not procure a fair and impartial trial in Shelby County.
One of the supporting affidavits averred the affiant had read the petition and he believed the statements contained in it were true, and it was his opinion an unfavorable attitude against appellant prevailed in Shelby County. The other supporting affidavit was much stronger, the affiant stating, among other things, that he had sat on a previous jury which had tried appellant's brother, Gilbert Tinsley, for the same crime, that several members of the panel did not believe Gilbert Tinsley was guilty as charged, but that others on the jury stood for a conviction regardless because they contended someone had to be sent to the penitentiary as an example in order to break up the stealing of livestock in the county. With the people in such a frame of mind, that affiant did not think appellant would receive equitable treatment at the hands of any jury in the county. Appellant's counsel, testifying relative to the trial of Gilbert Tinsley, whom he had likewise represented, claimed there had been much open agitation and pressure for a conviction of Gilbert Tinsley by a group of persons who had stayed at the courthouse throughout that trial, and he was convinced this hostile feeling was still prevalent and would be carried over and directed against appellant, thereby precluding him from obtaining justice in the county.
The Commonwealth filed a response to the petition and offered seven witnesses, among whom were many farmers and the county and Commonwealth's attorneys, all of whom testified that in their opinion appellant would be dealt with in a dispassionate, unbiased manner in Shelby County. We shall refrain from detailing their evidence, but we think we should point out that each witness was clear and emphatic in the belief that no undue animosity toward appellant was present and that he would not be prejudiced by a trial in that county.
The lower court, at the conclusion of the hearing, overruled appellant's petition, to which an exception was taken.
It is the prevailing rule of this state that the granting or refusing of a change of venue rests solely in the sound discretion of the trial judge, and a judgment of conviction will not be reversed because of a failure of the lower court to sustain an application for a change of venue, unless it is made to appear that such discretion was abused. See Hannah v. Commonwealth, 242 Ky. 220, 46 S.W.2d 121, and the cases cited therein. This statement appears in Mansfield v. Commonwealth, 163 Ky. 488, 174 S.W. 16, 18, and we believe this language therein applies with much force to this case: 'The circuit judge is one of the chief judicial officers of the state, it being his highest duty to administer the laws of the state so as to secure both to the commonwealth and the accused a fair trial; and, when he has denied the motion (for a change of venue), the presumption is that his ruling was influenced solely by his honest conviction that the defendant could have a fair trial in the county.'
After a careful reading of the record we concur in the conclusion the trial judge reached that appellant could have a fair and impartial trial in Shelby County.
Turning now to the evidence, which it becomes necessary to summarize in order to determine the next error assigned, the prosecuting witness, Laban Jackson, testified that on August 11, 1948 twelve lambs owned by him were missing, all signs indicating they had been stolen the preceding night. He secured the aid of the sheriff, Hubert Gordon, and that of John Isham, a detective of the Kentucky State Police, and...
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