Tolliver v. Commonwealth

• Decision Date: 09 June 1915
• Citation: 176 S.W. 1190,165 Ky. 312
• Parties: TOLLIVER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

176 S.W. 1190

165 Ky. 312

TOLLIVER v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 9, 1915

Appeal from Circuit Court, Lawrence County.

C. W Tolliver was convicted under an indictment charging murder and he appeals. Affirmed.

W. E Proctor, of Morehead, and H. L. Woods, of Olive Hill, for appellant.

James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth.

HURT J.

This is the second appeal from a judgment of conviction in this case. The opinion upon the former appeal will be found in 161 Ky. 81, 170 S.W. 515. The first trial was had in the Carter circuit court. After the judgment of conviction at that trial was reversed by this court, the appellant filed a petition for a change of venue, which was granted, and the venue of the case was changed from the Carter circuit court to the Lawrence circuit court, where another trial was had, which resulted in the conviction of appellant, and his penalty fixed at an indeterminate sentence of not less than 12 years', nor more than 21 years', imprisonment. The appellant filed grounds and entered a motion to set aside the verdict of the jury and judgment of the court, and to grant him a new trial, which motion was overruled, and he again appeals to this court.

No complaint is made that the court below made any errors in rulings upon the admission or exclusion of evidence, or in instructing, or failing to instruct, the jury as to the whole law of the case, and the only grounds insisted upon for a reversal of the judgment are: First. That the trial judge erred in overruling appellant's motion to require him to vacate the bench, as the judge in the case. Second. Because the court erred in ordering the change of venue in the case to be made to Lawrence county, instead of some other county in the state. Third. Because the court erred in overruling appellant's motion for a continance of his case when it was called for trial in the Lawrence circuit court.

The appellant's motion for a continuance of his case was based upon an affidavit, showing the absence of certain witnesses which he desired to use upon the trial, and a statement of the facts they would testify to if present, and, further, on account of the absence of one of his attorneys at the trial on account of illness of the attorney. The bill of exceptions shows that before the court overruled the appellant's motion for a continuance the commonwealth's attorney, in open court, agreed that the affidavit of the appellant might be read as the deposition of the absent witnesses, and it was then that the court overruled his motion for a continuance.

No motion was made to require the commonwealth to admit the truth of the matters, which it was alleged in the affidavit such absent witnesses would testify to, and this was not the term of the circuit court at which the indictment was found.

The affidavit showed that one attorney for appellant was absent on account of illness, but the record showed that he was represented upon the trial by three attorneys, two of whom represented him in the first trial of his case, and who must have been well acquainted with all of the facts of his case, with the nature of his defense, and with his witnesses. Absence of an attorney for a defendant in a criminal trial is not sufficient grounds for a continuance, unless it can be made clearly to appear that the defendant could not have a fair trial in his absence. Stephens v. Commonwealth, 6 S. W. 456, 9 Ky. Law Rep. 742; Brown v. Commonwealth, 7 Ky. Law Rep. 451; Cook v. Commonwealth, 114 Ky. 586, 71 S.W. 522, 24 Ky. Law Rep. 1409. We see no error made by the court in overruling appellant's motion for a continuance.

There seems to be no valid reason for insisting that the court erred or abused its discretion in changing the venue of the case to Lawrence county, or that anything prejudicial would or could result to the appellant by the order. Lawrence county is in the same judicial district with Carter county, and is an adjoining county thereto. The record does not disclose that appellant made any objection to the transfer of the case to the Lawrence circuit court at the time the motion for the change of venue was granted and the order made directing the case to be transferred to the Lawrence circuit court, and neither did the appellant except to the order directing the venue to be changed to Lawrence county. It appears that on the following day the appellant filed an affidavit, in which he set forth his reasons for his objection to the transfer of the case to the Lawrence circuit court. This affidavit appears to be more an attack upon the commonwealth's attorney than anything else. The objection to the Lawrence circuit court, set out in the affidavit, was that the commonwealth's attorney had engaged in a prosecution of a case in the Lawrence circuit court, in which the facts were similar to the case of appellant, and that the attorney for the commonwealth had made a very vigorous effort for the prosecution in that case, and that the people in Lawrence county had been aroused, and were very much opposed to the crime of homicide. This would only seem to indicate that the attorney for the commonwealth was doing his duty, and that the citizens of Lawrence county were aroused to a proper way of thinking upon the subject of homicide, and could not be construed as placing the appellant in a situation where he could not have a fair trial.

The affidavit discloses that the courthouses in two other counties in the district are only from 25 to 30 miles from the courthouse in Carter county, while that in Lawrence county is 70 or 80 miles distant. There is, however, shown that a railroad connects the place of the homicide in Carter county, where the most of the witnesses in the case reside, with the county seat of Lawrence county, while no railroad connected with at least one of the other counties mentioned. After the filing of appellant's affidavit opposing the change of venue to the Lawrence circuit court, no motion was made to change the order transferring the case to Lawrence county, and it does not appear that the objections of appellant were ever brought to the attention of the court. If such had been done, the objection of appellant was not supported by any other affidavit than his own, and was contradicted by that of the attorney for the commonwealth.

When objection is made to a county, where the court is proposing to transfer a case, when a change of venue is granted, the objection must be a valid one, and the court may hear proof on the question upon the part of both parties. Mickey v Commonwealth 13 Bush, 237. In the case of Adkins v. Commonwealth, 98 Ky. 539, 33 S.W. 948, 17 Ky. Law Rep. 1091, 32 L. R. A. 108, it was held that the court, in selecting a county to transfer a case to, upon a change of venue being granted, is not bound by the affidavit of the defendant, objecting to a particular county, but the court may act upon its own personal knowledge in so doing....