30 Ky.L.Rptr. 349
Court of Appeals of Kentucky.
>FITZGERALD v. COMMONWEALTH.
Dec. 14, 1906.
ACTION: Affirmed.
Appeal from Circuit Court, Knox County. "Not to be officially reported." Jesse Fitzgerald was convicted of murder in the first degree, and he appeals. NUNN, J. The appellant, Jesse Fitzgerald, and Amy Sopher, were jointly indicted in August, 1906, at a special term of the Knox circuit court charged with the murder of Martha Broughton, and also with conspiracy to commit that crime. On motion of appellant's counsel, he was granted a separate trial, which resulted in his conviction as charged, and the death penalty being imposed. The evidence in this case discloses a most atrocious murder. Without going into the details of this revolting crime with any degree of particularity, it appears that shortly after midnight about the last of June, 1906, Mrs. Broughton was in bed at her home, some 2 1/2 miles from Barbourville, when the appellant entered her room through a window, and there, according to his confessions proved upon the trial, cut his victim's throat, nearly severing her head from her body. He then opened a trunk in the room and took therefrom about $40 in money. There was no eyewitness to the killing, except, possibly, his accomplice, who did not testify; but all the facts and circumstances of the case, together with the confessions of the accused proved upon the trial, show conclusively that he committed the crime. The first ground urged for reversal is that the court did not have jurisdiction to grant appellant a trial at the special term of the court. We are of opinion that this contention is without merit. Section 964 of the Kentucky Statutes of 1903 authorizes the circuit courts to call special terms in certain emergencies for the trial of civil and criminal cases. The provisions of this section were complied with by the court in calling the special term. The second question presented is that the court erred in refusing to grant appellant a change of venue. It appears that appellant filed his petition, which contained all the statements and facts necessary to authorize the change, but it was unsupported by the affidavits of at least two, or any, credible housekeepers of the county in which the prosecution was pending. The affidavits, which, in order to avail the appellant, should have been signed by two credible housekeepers, were in blank. No one, it seems, was willing to sign them, and the reason given therefor is that the residents of the county were afraid to do so. From the opinion of the trial judge rendered upon this motion, it is evident that he was impressed with the truth of this statement, but decided that he was powerless to grant the change without the required affidavits. In this he was correct. The requirement that these affidavits must accompany such a petition is statutory. The only power the court has to grant a change of venue is conferred by statute, and as the appellant failed to comply, which the court correctly overruled his application for the change. This resulted in a hardship to the appellant, but the court was without discretion in the matter; the Legislature having enacted the form of procedure to be followed. The third and last ground urged for reversal is the refusal of the court to sustain appellant's motion for a continuance of the case on account of the absence of two witnesses, Arnold Ledbetter and Sherman Moses. In his affidavit the appellant stated that these witnesses, if present, would testify truthfully that they were with him in Ely Hollow, which was about eight miles from where Mrs. Broughton was killed, during the entire night on which it was charged he took her life; that they played cards and dice the greater portion of that night, and were not out of each other's company during any portion thereof. He failed to state in his affidavit, however, where these witnesses were then residing or might be found; nor did he indicate that there was any reasonable probability of obtaining their presence at a trial at any future time. The court refused to grant the continuance on this affidavit, and also declined to permit appellant to read it as the testimony of the absent witnesses. This court has repeatedly held that an affidavit for a continuance, filed by one charged with crime, cannot be rebutted by counter affidavits. Generally its truth must be admitted on the hearing. The lower court caused process to be issued for the witnesses named in the affidavit under discussion, both in the county where the prosecution was being conducted and all adjoining counties, and by its officers made every effort to obtain their presence, but to no avail. It then became apparent to the court that the statements contained in the affidavit were false, and it was simply a ruse on the part of the appellant to obtain a continuance. It was made to appear to the court that these parties had not been in that county for more than a year past, and, further, had not been heard of for that length of time. "If, though, the accused sees proper to set it out in an affidavit, the court should not be bound to admit that as true which he knows is not true. To do so would put the court and the administration of justice virtually in the hands of a conscienceless person accused of crime."This court decided that counter affidavits to an affidavit for a continuance were inadmissible, but said: "It is true this rule should not be so restricted as to prevent the trial judge, where he has reasonable ground, from all the circumstances, to believe that an imposition is being attempted, or a ruse being practiced, from ascertaining whether the belief is well founded." The trial court should be exceedingly cautious in determining a question like this, and should grant a continuance on such an affidavit, unless it be made to appear beyond all shadow of doubt that there is no basis for the statements contained therein, and that a ruse is being practiced upon the court to secure a continuance. Under the facts as disclosed by this record, we do not think the court erred in overruling the application for a continuance. We feel it is but justice to counsel who represented the appellant by appointment of the court to say that we think they are in no wise responsible for any attempt to impose upon the court in order to secure a continuance of the case. They are evidently men of integrity and honor, and their conduct of the case secured for the appellant as fair and able a presentation of his defense as was possible under the circumstances. Judgment affirmed. Ky.App. 1906. FITZGERALD v. COMMONWEALTH. 98 S.W. 319, 30 Ky.L.Rptr. 349

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