Wathen, Mueller & Co. v. Com.

• Decision Date: 26 January 1909
• Parties: WATHEN, MUELLER & CO. v. COMMONWEALTH.d
• Court: Kentucky Court of Appeals

116 S.W. 336

133 Ky. 94

WATHEN, MUELLER & CO. v. COMMONWEALTH.d

Court of Appeals of Kentucky.

January 26, 1909

Appeal from Circuit Court, Marion County.

"Not to be officially reported."

Wathen Mueller & Co. were convicted of unlawfully selling and retailing quantities of whisky of less than five gallons, and appeal. Reversed and remanded.

Samuel Avritt, Lafe S. Pence, and Lindsay & Edelen, for appellants.

Jas Breathitt, Atty. Gen., Tom B. McGregor and Theo. B. Blakey Asst. Attys. Gen., W. W. Spalding, and R. L. Durham, for the Commonwealth.

NUNN J.

Appellants are registered distillers engaged in the manufacture of whisky in Marion county; their distillery being located outside of the limits of the city of Lebanon and not in local option territory. They were indicted at the June term, 1908, of the Marion circuit court in several cases, charged with the offense of retailing whisky in less quantities then five gallons without license to do so. Before any of the cases were called for trial, or any steps taken, appellants filed in the clerk's office an affidavit and an amended affidavit, seeking to have the regular judge vacate the bench. The judge held the affidavits insufficient, and refused to vacate the bench, and proceeded to call the cases for trial, whereupon appellants waived a jury and submitted the law and facts in two test cases to the court. The waiver was made upon the express agreement between the parties with the consent and concurrence of the court that the waiver of the jury was in no wise to prejudice the rights of appellants, nor was such waiver to be considered as a waiver of the objections of appellants to the presiding judge sitting on the trial of the case or taking or exercising any jurisdiction in the case.

The main question to be determined on this appeal is whether the court erred in refusing to vacate the bench upon the filing of the affidavits of appellants, by which they sought to have him vacate the bench. The original and amended affidavits filed by appellants for the purpose of having the judge of the lower court vacate the bench are very long, and for that reason we refrain from copying them. It would be tedious and without profit to any one to give a full synopsis of all the facts and points made in the affidavits. We will therefore only state the substance of a few of the salient reasons stated why the judge should have refused to try the cases. It is stated that in the month of March, 1907, there was an election held to determine whether or not local option should prevail in the city of Lebanon, and that the judge of the court, although a resident of another county, made divers public speeches during the canvass in Lebanon in the public hall, and used and uttered violent and bitter language against persons engaged in the business of selling whisky, in which speeches he used the following language: "If local option was voted by a majority of the people of Lebanon, that with his juries and the machinery of his court he would see that the town was kept dry." Local option was carried in that city, and at the first court that convened thereafter the judge appointed three jury commissioners who were ardent local option men, and, although the citizens and voters of that county were about equally divided on the question, all the names, consisting of a hundred or more, drawn from the jury wheel after the election for the purpose of impaneling petit and grand juries were ardent advocates of local option. It was charged in the affidavits that the judge entertained such prejudice and bias on the subject of whisky traffic as to disqualify him from presiding over the trial of any one charged with a violation of the laws regulating such traffic and that he said during the trial of a case in an adjoining county, just previous to the time of the filing of the affidavits: "That in any case coming before him as judge involving a charge of an infraction of the local option laws, if any doubt arose he would solve it in favor of the commonwealth. *** I will solve all doubts in such cases in favor of the commonwealth, and if parties go unwhipped of justice on the charge of violating the local option law in my district, it will be by the verdicts of the juries, and if I were on the jury I would find a way to convict them." It was also charged in the affidavits that the presiding judge was personally hostile to appellants, and that on account of such personal hostility, as well as on account of an uncontrollable and unreasonable bias against the whisky business, he originated and instigated a movement on the eve of the holding of the local option election in Lebanon, Ky. to wit, the 9th day of March, 1907, to cause false charges to be made against appellant R. N. Wathen and other opponents of local option, and to cause their arrest on the false charge of conspiracy to bribe voters; and it was, in substance, stated that the arrest and humiliating treatment of appellant Wathen and others was a part of a scheme concocted and advised by the regular judge, that it was not done in good faith, but for the purpose of intimidating and deterring the opponents of local option and as a means of carrying the election in favor of local option, that this unlawful arrest had been determined upon by the judge and others in connection with him, two or three weeks...