Williams v. Commonwealth

• Decision Date: 26 September 1941
• Citation: 287 Ky. 570,154 S.W.2d 563
• Parties: WILLIAMS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

154 S.W.2d 563

287 Ky. 570

WILLIAMS v. COMMONWEALTH.

Court of Appeals of Kentucky

September 26, 1941

Appeal from Circuit Court, Leslie County; Guy L. Dickinson, Special Judge.

Elvin Williams was convicted of false swearing, and he appeals.

Reversed with directions.

J. H Asher, of Hyden, for appellant.

Hubert Meredith, Atty. Gen., and H. Appleton Federa, Asst. Atty Gen., for appellee.

THOMAS Justice.

At the regular 1939 election for the office of judge of the Thirty-Third Circuit Court Judicial District in this Commonwealth the then incumbent, S. M. Ward, and K. N. Salyer were candidates therefor. The canvassing board certified that Judge Ward had received a majority of the votes cast in the counties composing the district and issued to him a certificate, but Salyer contested the certification so made in an action filed by him against Ward in the Leslie circuit court--it being one of the counties of the district and in which Judge Ward resided. One of the grounds of contest was the violation by Judge Ward of our Corrupt Practice Act, Ky.St. § 1565b-1 et seq., whereby he spent money for the purchase of votes for himself in the election, and we held in the case of Ward v. Salyer, 283 Ky. 294, 140 S.W.2d 1016, that the testimony heard at the trial of the contest established that ground, and as a consequence there was no valid election held for that office and it was declared vacant.

Appellant and defendant below, Elvin Williams, testified in that case that on a certain occasion and at a certain place Ward gave him $10 with at least the implied intention and purpose to buy seven votes in the family of appellant, and instructed him at the time to employ the money partly in procuring other votes for Ward. A son of appellant was present on the occasion and corroborated the testimony of his father. Almost immediately after appellant had so testified Ward procured the county judge to issue a warrant for the arrest of appellant, charging him with false swearing, and under which he was bound over to the grand jury. The special judge, who was then trying the contest, issued an order forbidding any such arrests during the progress of the contest trial and no more were made throughout that period; but Ward, after the contest trial was over, went before the grand jury then in session in Letcher county and requested that body to indict about fifteen witnesses who had testified to similar transactions, and that request was complied with, resulting in the return of indictments against the persons named by Ward in which each of them was accused of false swearing in the contest trial, among whom was appellant.

Before the prosecution was set for trial, which was due to be had at the current term, defendant gave notice of his intention to move for a change of venue, which was later heard, and a great number of witnesses pro and con testified on that motion, filling two volumes of evidence which constitute a part of this record. However, the special judge appointed to try the prosecution overruled the motion and a day was set for the trial of the indictment. On that day appellant moved to quash the indictment because the grand jury that returned it was improperly drawn from the wheel by Judge Ward, in that he read out the names drawn from the wheel to the clerk of the court who recorded them on a sheet of paper and that he thereby divulged the names of those who composed the next grand jury that returned the indictment. That motion was also overruled and the trial proceeded with an eventual verdict of the jury finding appellant guilty and punishing him with confinement in the penitentiary for one year. His motion for a new trial was overruled, and from that order and the judgment of the court pronounced on the verdict he prosecutes this appeal, relying on a number of grounds for a reversal, among which are, (1) error of the court in overruling his motion for a change of venue; (2) like error in overruling his motion to quash the indictment, and (3) error of the court in overruling his motion for a peremptory instruction of acquittal on the ground that his guilt was not shown by the testimony of two witnesses, or of one witness and strong corroborated circumstances which must be done in a prosecution for perjury or false swearing. These grounds will be considered and determined in the order named.

1. The question presented by ground (1) has been before this and other courts many times, and none of them has ever defined with precision any definite or settled course to be pursued by the court trying it. On the contrary, the most that has been determined is contained in a general statement that a trial court is vested with a sound discretion in determining the question upon the evidence and circumstances of each case, and that unless such discretion has been abused to the probable detriment of the accused the appellate court will not disturb the order of the trial court in disposing of the motion. But it will be perceived that such indefinite statement of the law--which we hereby approve as correct--erects no permanent or fixed standard to guide the court in passing upon such questions, but relegates their determination, and the course to be pursued, to the facts and circumstances of each case and to the sound judgment of the court as to whether or not such facts and circumstances reveal a situation of bias, prejudice or other adverse circumstances whereby there is considerable probability of the accused being unable to obtain a fair and impartial trial within the venue of the pending indictment. With the law in that condition it is an easy task to find cases decided by both this and other courts wherein the ruling of the trial court was upheld, and others wherein it was set aside, dependent upon the appellate court's conclusion as to whether or not in the particular facts disclosed, a due regard for the constitutional requirement of a fair and impartial trial has been violated. Such variety of opinions may be found in the cases cited to section 1109 of our present Statutes, among which are those of Allen v. Commonwealth, 168 Ky. 325, 182 S.W. 176, and Estes v. Commonwealth, 229 Ky. 617, 17 S.W.2d 757.

In the Allen case the prominence of the victim constituted the main ground for the motion for a change of venue; whilst here the prominence of the prosecuting witness (Judge Ward) furnishes that ground, plus the activities and earnest efforts of the sheriff of Leslie county and at least some if not all of his deputies, and also that of the circuit court clerk or county court clerk, or both, and other friends of the prosecuting witness who, as will be seen, was the incumbent presiding judge of the court in which the trial was to be had and had been such for more than one full term. He and those of his friends that we have mentioned were most active in their efforts to bring about a conviction of those who had testified against him in the contest proceedings. So much so that the brief filed for the commonwealth on this appeal says: "It is very apparent through the whole transcript that Judge Ward was determined to convict those who testified against him in the election contest suit." As we have seen, he drew the condemnation of the judge trying that contest by procuring the arrest of the first witness who testified against him on an issue of violating the Corrupt Practice Act, and which was such a blatant effort at intimidation as to call for a mandatory order of the judge presiding at the contest proceedings that such steps should thereafter be prohibited until after that trial was finished. Judge Ward's testimony before the grand jury was transcribed by the stenographer provided for it and has been made a part of the record. It breathes a command to that body and exhibits a determination fully supporting the excerpt supra from the brief of the commonwealth. Other facts and circumstances appearing upon the trial of the indictment wherein Judge Ward was most conspicuous as a vigorous prosecutor strengthens the conclusion therein.

So far as the record discloses, the appellant was and is an humble citizen with a limited acquaintance as well as a limited number of friends, if, indeed, he possessed any. If what he testified to was the truth, then it demonstrates that he was likewise a citizen of low morale, yet...