Estes v. Commonwealth

• Decision Date: 24 May 1929
• Citation: 229 Ky. 617,17 S.W.2d 757
• Parties: ESTES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

17 S.W.2d 757

229 Ky. 617

ESTES v. COMMONWEALTH.

Court of Appeals of Kentucky

May 24, 1929

Appeal from Circuit Court, Estill County.

David Estes was convicted of murder, and he appeals. Reversed and remanded, with directions.

Burnam & Greenleaf, of Richmond, and Fred K. Cope, of Jackson, for appellant.

J. W Cammack, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for the Commonwealth.

THOMAS J.

In the late afternoon of Sunday, May 6, 1928 (after it had become dark), the appellant and defendant below, David Estes, shot and killed A. J. Brookshire, who was at that time the sheriff of Estill county, Ky. The killing occurred in the front yard near to the porch of defendant's small residence located on an alley in the outskirts of Irvine, the county seat of the county. A regular term of the Estill circuit court was then in session, or convened the next morning, and on the latter day defendant was indicted, charged with murder, and two weeks thereafter he was tried and convicted; the jury fixing his punishment at death. His motion for a new trial was overruled, and on this appeal he urges three substantial grounds for a reversal of the judgment, which are: (1) The court erred in overruling his motion for a change of venue (2) the admission of incompetent evidence, including misconduct of prosecuting counsel in his unwarranted efforts to introduce incompetent evidence; and (3) erroneous instructions, each of which will be considered and disposed of in the order named.

1. Appointed counsel represented defendant at his trial, and four days after the return of the indictment he filed a petition for a change of venue, with proper notice and supporting affidavits, as required by the statute giving the right, which is section 1109 of the 1922 edition of Carroll's Kentucky Statutes, the authority for the enactment of which is expressly given by section 11 (a part of its portion usually designated as the Bill of Rights) of our Constitution, but which right existed at common law independently of any constitutional or statutory creation. As stated in our opinion in the case of Bradley v Commonwealth, 204 Ky. 635, 265 S.W. 291, it was and is "bottomed upon the policy of the law that not only the defendant in a criminal prosecution, but the Commonwealth as well, should receive a fair trial at the hands of an unbiased and unprejudiced jury; and that if such a trial could not be obtained in the venue of the commission of the offense it should be removed to a place where it could be so obtained, all of which was pursuant to the underlying determination that justice should prevail in a court of justice, and that neither life, blood nor liberty shall be taken from the citizen except through a fair and impartial trial, nor should the Commonwealth be deprived of its right of just punishment except through such a trial."

It is furthermore pointed out in that opinion, and which is fortified by the citation of prior opinions of this court, that the burden is upon the applying defendant on such hearings to prove the grounds upon which he relies in support of the motion, and that the trial court is vested with a large discretion in determining the issue; but that the discretion is not an arbitrary one, and may be reviewed by this court, and, if found by it to have been abused, a reversal of the judgment will be ordered. We will not here insert those cases, since they may be found on pages 639 and 640 of the volume, supra (265 S.W. 293, 294), containing that opinion. The facts in each of them on the issue now under consideration were briefly referred to in the Bradley opinion, and the reasons for the diverse conclusions of the trial court in each of them were harmonized with the terms of the statute, supra, and so as to render them consistent with the foregoing purpose of the law as applicable to criminal prosecutions, and which analysis we will likewise omit from this opinion. It is sufficient to say that it was therein clearly shown that each case is to be determined largely from its individual facts and circumstances with a view of effectuating the purpose for which the right exists.

A case not referred to in that opinion is that of Browder v. Commonwealth, 136 Ky. 45, 123 S.W. 328, wherein the statements of the witnesses introduced upon the hearing of the motion, literally considered, preponderated against its granting, but which this court determined were overcome by the proven and undisputed circumstances in the case, and which were held to speak louder and more convincingly than the mere opinion statements of witnesses, who themselves might be influenced the one way or the other because of the prevailing sentiment either for or against the defendant. In doing so we therein said: "In cases like this the court will not be concluded by the opinions of witnesses, but will look at the facts for itself; for it may happen that the strong feeling against the defendant in a county which prevents his having a fair trial may prevent him from obtaining witnesses to so testify on his motion for a change of venue," and which latter was made to appear in this case.

Other cases dealing with the question, as it relates to the duty of the trial court upon such hearings and to the authority of this court to interfere with its judgment, and not referred to in the Bradley opinion, are: Johnson v. Commonwealth, 82 Ky. 116, and Hutsell v. Commonwealth, 225 Ky. 492, 9 S.W.(2d) 132. The substance of such prior opinions is to the effect that, if the entire testimony in the case, as augmented by proven circumstances and conditions, establish with reasonable clearness that, because of a prevailing adverse prejudice against defendant, he could not obtain a fair or an impartial trial in the county where indicted and where the offense was committed, it then becomes the duty of the court to sustain the motion and to direct the trial to be had in some adjoining county where such prejudice did not prevail, or, if none such, then to the nearest county free from such prejudice.

With the law being in the condition as so briefly outlined, it becomes necessary to examine the substantial facts developed at and prior to the hearing of the motion in this case and to measure them by the declared principles of the law, supra, as so consistently announced by this court, and to then determine whether there was an abuse of discretion of the learned judge of the Estill circuit court in overruling defendant's motion. Before referring to the evidence, it might be well to remember that prejudice against a defendant on trial may be of different kinds and may produce different conclusions on the part of the members of the public among whom the prejudice prevails. By way of illustration, the prejudice may exist against the defendant personally, and may not touch his guilt or innocence of the particular accusation against him; or there might not be any prejudice against him personally, but, because of the enormity of the crime or the popularity of its victim, the prejudice may take the form of a crystallization of sentiment relating exclusively to the punishment that should be inflicted upon the perpetrator of the crime whomsoever he might be, or it may produce the sentiment that the accused is not only the guilty party, but also that he should receive the maximum punishment provided by the law, and the latter seems to have been true in a number of the cases, supra, particularly the Johnson, Browder, and Bradley Cases, and also in this one. In the Hutsell Case, which is the latest one before this court, where the change of venue was denied by the trial court and approved by this one, there was no personal prejudice against the defendant, nor as to his guilt, but only as to the punishment that he shoud receive if he was guilty. The commonwealth therein overcame the prima facie showing made by the defendant, and we held that the trial court properly overruled the motion, and which was likewise true of a number of the other cases referred to.

We have already seen that the deceased, at the time he was killed was the sheriff of Estill county, and was universally liked. He had been deputy sheriff of the county prior to his election as sheriff, and had not only formed many acquaintances in the county, but, be it said to his credit, he had made hordes of friends therein. He had a large family connection, as was also true with his wife, who belonged to a prominent family of that county, and the mere fact of his being slain, by whomsoever it was done, produced instant and universal indignation. Defendant was regarded as belonging to that class of law violators known as "bootleggers," and the local newspapers published accounts of the homicide with large and inflammatory headlines, in substance, that "The sheriff of the county had been murdered by a bootlegger." Immediately, and on...