32 L.R.A. 108, 17 Ky.L.Rptr. 1091, 98 Ky. 539
Court of Appeals of Kentucky.
Jan. 16, 1896.

Appeal from circuit court, Knox county.
"To be officially reported."
Joseph Adkins and Jesse Fields were convicted of murder in the first degree, and appeal.

This is an appeal by Joseph Adkins and Jesse Fields from a judgment of the Knox circuit court sentencing each of them to confinement in the state penitentiary for life, for the murder of Josiah Combs. The killing occurred in Hazard, the county seat of Perry county, on the 23d day of September, 1894; same being Sunday and about 7 o'clock in the morning. Indictment against these defendants was duly found by the grand jury of Perry county on the 13th day of December, 1894. And on the same day, a motion of the commonwealth, for the removal of the cause to another county, was made, accompanied by the written statement of the commonwealth's attorney, in due form, that the state of lawlessness was such in Perry county that a fair trial of the accused on said charge could not be had in that county. This motion was not opposed by the accused, but pending same they filed a joint affidavit saying that they had been participants in what was known as the "French-Eversole Feud," that had been going on in Perry county and (naming) 10 other counties, including the county of Knox, and that the state of public opinion against them, among the masses of the people, relations, and friends of the Eversole faction and J. M. Combs, in the counties named, was such that they did not believe they could have a fair trial in either of said counties. This affidavit was supported by the joint affidavit of three other persons, who simply say that they are acquainted with the facts stated in the foregoing affidavit, and that they believe them to be true. Upon this state of the record, the court made an order removing the cause to the county of Knox for trial, and to this order defendants excepted. And when the case was called in Knox county for trial, and before entering their plea of not guilty in said court, they objected to the jurisdiction of the circuit court of Knox county, and moved that "said cause be remanded to the circuit court of Perry county, to be again assigned." This motion was overruled by the court.

It will be noticed that by the statute, passed in pursuance of the constitutional authority, for the removal of causes by the commonwealth, when the commonwealth's attorney has filed his statement showing the necessity of the removal,"the court may then act on its own personal knowledge in the removal of the cause, either to some adjacent county, or yet to some other county most convenient, and in which the court is of opinion that a fair and impartial trial may be had." In the order removing this case, the court recites that, so acting on its own personal knowledge, it removed the case to the county of Knox, "as being the most convenient county for the trial of same in which this state of lawlessness did not exist." In this removal the court was authorized so to act, and was not bound by the affidavit of the accused, though supported by the other affidavit, in objecting to the county of Knox. The objection of the accused to the jurisdiction of the circuit court of Knox county was properly overruled.

The Knox circuit court begin on the second Monday in April, 1895. This cause seems to have been set for the fourth day of the term. The commonwealth announced "Ready." The defendants were not ready, and, being required, they filed an affidavit setting out the absence of some 25 witnesses by whom they could prove important and material facts, chiefly relating to an alibi in behalf of both parties; showing that in March, before, they had procured a subpoena for the witnesses, and placed same in the hands of the sheriff of Breathitt county, where said witnesses resided; counsel for defendants saying to the court that they did not desire a continuance of the cause for the term, provided they could obtain the attendance of these witnesses at a later day of the court. Thereupon the court set said cause for hearing on the tenth day of the term. And upon the representation of the accused that they were poor, and that their witnesses were poor, and had not the means to pay passage from Breathitt county, where they lived, to Knox county, the court made an order directing that these witnesses should be summoned and arrested on behalf of the commonwealth, and brought to court. This warrant of arrest, however, was never issued, and never in fact sent to the sheriff of Breathitt county. But, as is shown by an affidavit in the cause, the judge of the court-not in open court, but at night, and at the instance of the attorneys for the prosecution, and without the knowledge or consent of the accused or their counsel-appointed one Burton, a witness for the commonwealth, and one Mann, a resident of Breathitt county, as special bailiffs to execute this process. It appears from the affidavit of Burton that on going to Jackson, the county seat of Breathitt, he found Mann, and had him duly sworn, and that then, having an arrangement with Marcum to furnish tickets by railroad to such witnesses as they might obtain, they summoned for the defendants 13 witnesses; that, of these, 3 were sick, and the family of another was sick, but that they did in this way have present, at the time and place agreed on with Marcum, 9 of the witnesses of the defense, but that Marcum failed to appear and furnish the transportation as he had agreed to do. And the special bailiff says that, having no money himself to pay the fare of the witnesses, and the day of trial approaching, he did not place the witnesses under arrest, but abandoned them, and returned to court to make his report; that only a single witness was secured by this arrangement.

On the calling of the cause on the tenth day of the term, the attorney for the commonwealth again announced "Ready," and the defendants, "Not ready;" and, being required by the court again to show cause, they filed another affidavit, reciting the absence of some 27 witnesses, the materiality of whose evidence in their defense was duly set forth, together with the facts developed in their efforts to procure their attendance since the former calling of the cause, as recited herein. And defendants again asked a continuance. Upon an examination of this last affidavit, the commonwealth's attorney agreed that the same might be read upon the trial of the cause as the testimony of the absent witnesses; the counsel for accused insisting, if compelled to try on this affidavit, that the state should admit absolutely, as true, the facts stated in this affidavit. This the court overruled. Exceptions were duly taken, and the court overruled the motion for a continuance. Exceptions were duly taken. Thereupon an examination of jurors, touching their competency, commenced, and five being obtained who were qualified, but not finally passed upon or accepted, an adjournment was had until the next morning. Whereupon, on the assembling of court next day, defendants offered to file an additional and amended affidavit reaffirming the one filed the day before, and setting forth in their amended paper quite a number of (some 16) witnesses not before presented to the court, and whose testimony they said they had discovered since the filing of their former affidavit. Most of the witnesses named in this amended affidavit lived in and near Hazard, the place of the killing. "And by the testimony of six, at least, of them, defendants say they can prove such facts as will clearly show that five of the six of seven witnesses for the commonwealth who will undertake to identify Joseph Adkins as the man who did the shooting, and some of whom identify Fields as the man who was present at the time, were not in fact present at the time of this shooting, and that they did not and could not possibly have seen, at the time and place they claim to have seen, the person who did this shooting." So clearly and distinctly is this evidence embraced in this amended affidavit opposed to the testimony of the witnesses who testify for the commonwealth to the killing, that their materiality cannot for a moment be questioned. If the testimony as contained in this amended paper offered is true, then it greatly impairs the most important and direct testimony of the witnesses for the commonwealth who testify to the killing, and who undertake to identify Adkins and Fields as the parties who participated in same. Quite a number of the witnesses named in the last paper, it is said, will contradict testimony of commonwealth's witnesses tending to connect these defendants with the killing and same are clearly contradictory of the evidence of the commonwealth, as afterwards appears in the trial. No inconsiderable part of the testimony of the commonwealth tending to identify Adkins and Fields consisted of the evidence of certain parties who went in pursuit of the parties who did the shooting, and who claimed that, in a fight with said parties on that day, two of them shot and wounded Fields, and at the same time claimed to recognize Adkins as being with Fields in the fight; and yet by an examination made only two days later, by the friends of Combs, who was killed, of the person of Fields, it was clearly shown that he had not been wounded at all. In this amended paper it was stated that the reason that neither of the defendants had been to Hazard since this killing, to hunt up evidence in their behalf, and to prepare their cause, was that the state of feeling against them in that town and county was such that their lives would have been endangered, and that this occasion was the first opportunity they had to obtain this information. This affidavit was full in other respects as required by law. The court refused to permit the defendants to file this affidavit, or to give the accused, in any way, any benefit of the evidence contained in same,-again refusing to continue the cause. During the day, further progress was made in obtaining a jury, but it was not completed, accepted, or sworn, and the court again adjourned over until the next day.

On the morning of the next day, defendants offered to file a fourth affidavit, in which they, still relying upon their former affidavits, say that "it is manifest that the testimony to be heard in the case will be extremely conflicting and contradictory, and that the personal presence of their witnesses is highly important, and that, since the calling of this case on the tenth day of the term, the witnesses for the prosecution, conspiring together to intimidate and prevent the attendance of the witnesses for defendants, have procured, by false testimony before the grand jury, the indictment of some of these witnesses for false swearing or perjury, by reason of the testimony formerly given by them before the county judge of Knox county on a motion for bail, and that one of same (Patton), the only one who was obtained by the special bailiff out of the whole twenty-five whom he was ordered to arrest, has been so indicted, and in open court, and in the presence of the jury then approved, arrested on said charge; that they are refused access to or knowledge of these indictments against their witnesses. Cannot tell against whom nor how many are indicted, but they say that, in all this, a fair and impartial trial is obstructed and denied these defendants." On tendering this paper, the defendants again moved a continuance. The court refused to permit same to be filed, and again overruled the motion to continue the cause. It is proper to add that, of the witness for the defense from Breathitt county who were relied upon by them to prove an alibi, 10 finally appeared, and testified to a state of facts which, if true, showed it was impossible that either of the accused (Adkins or Fields) could have been in Hazard, Perry county, Sunday morning, September 23, 1894, when the shooting and killing of Combs occurred; this testimony showing the accused to have then been in Breathitt county, 30 miles away from Hazard, at the hour of the shooting of Combs. And finally it appears, under the affidavit which the accused did file, and the statements of which the commonwealth consented, to prevent a continuance, might be read as evidence, that the statements of 13 other witnesses were read on this same matter of an alibi; that these statements were given with great detail and circumstance of time and place, and showing conclusively, if true, that the accused could not have been in Hazard, Perry county, at the time of the killing of Josiah Combs. Counsel for the defendants contend earnestly that in all this proceeding their clients have, by this combination of circumstances,-one of the affidavits filed showing the absence of their chief attorney, who was acquainted with all the facts of the case,-and by the rulings of the court, been deprived of a fair and impartial trial; that they have not been allowed a reasonable opportunity to prepare their defense in a case of such grave magnitude to them. And particularly do counsel complain that their clients have not been awarded that compulsory process of the law to compel the attendance of their witnesses, as guarantied under the bill of rights (a part of the constitution of the state) to every person accused of crime; that their clients have not been accorded any reasonable opportunity for the operation and execution of such compulsory process, as provided by the supreme law of the land; that instead of this process, which, under the law, should have gone to the sheriff of Breathitt county, same was not so awarded, but that in disregard of this law, and as a substitute therefor, a special bailiff was appointed by the judge of the court, at the instance of the attorneys employed to assist the commonwealth in their prosecution (and which was so ordered without their knowledge or consent). And while counsel do not question the good faith of the court in making this special order, yet they say the utter failure of which process to the special bailiff was due to the failure of one of the attorneys for the commonwealth to furnish the transportation as he agreed to do (all this is shown by the affidavit of the special bailiff in the record, and remains unexplained); and that, finally, they were forced into trial without the personal attendance of many of their material witnesses, and, as to some of them, compelled to try without any benefit whatever of their testimony, and, as to others, only on the admission by the commonwealth that the affidavits should be read as the testimony of the absent witnesses, and not upon the condition that the statements should be taken as true.

Counsel question the constitutionality of the act of 1886 in reference to the trial of criminal cases, whereby this proceeding is made possible under the Code. Counsel say that this question has often been presented to this court, but not decided; and they insist in this case that it is due to their clients, as well as to the trial courts of the state, and to the profession, that it should be determined.

The provision upon which counsel rely is found in the eleventh section of the bill of rights, adopted as a part of the present constitution of Kentucky, and is as follows: "In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor." These are substantially the same provisions on this subject as contained in the old constitution of Kentucky. Reviewing this case in the light of this interpretation, and upon the facts disclosed by the record, we feel constrained to say that the accused have not, in the trial of this case, had awarded them the compulsory process of the law, with reasonable time and opportunity to obtain the benefit of same. And for this reason the judgment of conviction, as to both appellants, Adkins and Fields, is reversed, and the cause remanded to the Knox circuit court for further proceedings therein not inconsistent with the principles of this opinion.

We might add that we do not view with approval the filing of indictments by the grand jury of Knox county, based solely on the evidence of the witnesses for the prosecution in the criminal case under trial, against the witnesses of the defendants who had theretofore testified to facts showing, in behalf of the accused, an alibi. The filing of same in the presence of those summoned to serve as jurors in the trial of the murder case was not calculated to give to the accused that fair and impartial trial contemplated by law. Many other objections are made by counsel for appellants on this appeal, but, outside of the matters indicated, we find the record substantially correct, and free from error. The case needed no other evidence to authorize the submission of the conspiracy between these parties and others to do the deed than the evidence tending to identify them as the persons actually present and participating, and tending to identify them as the parties found in the woods a few miles away, and with whom the posse claim to have had an encounter. That there was yet a third man stationed on the hill opposite the town, who participated in the firing on Combs, or at least at the time of his killing, seems to be conceded. This third man might well correspond to one of the three men found in the woods by the posse.

The court seems to have kept steadily in view the principle heretofore announced by this court, that evidence tending to connect the accused with the faction adverse to the Combs people must be of a general nature only, and that it was not proper for either party to go into the particulars of any transaction. And, further, the court warned the jury that the evidence admitted on this line could only be considered by them as supplying a possible motive for the commission of the offense with which they now stand charged. Neither was it necessary for the court, all through the trial (where the defendants were being tried together), to be constantly warning the jury that this or that particular evidence was either to be considered only against or in favor of one or the other of the accused. The jury may be fairly supposed to possess sufficient intelligence to distinguish and apply the evidence properly.

Another matter complained of is that the court, on entering upon the trial, disregarded the order of the county judge of Knox county, previously made, allowing bail; held the bond taken bad on its face, as not being taken by the proper officer; and then ordered the defendants into actual custody. There was no error in all this. It would be a strange perversion of the law if a county judge could dictate to a circuit judge what course he should pursue in the trial of one charged with felony in his court. It was within the discretion of the court to order defendants into actual custody when the trial commenced. Neither should the order of the county judge heretofore made have any effect, or be regarded of any validity, if the prisoners desire to again give bail. New proceedings for this purpose will be necessary, before the proper officer.

We mention these things only because questions of a similar nature may again arise in any future trial of the defendants. And, as this cause must go back for a retrial, we have carefully refrained from expressing any opinion as to the merits of the case on the evidence. This is purely and exclusively a question for the jury to determine. The motion by the commonwealth to strike the bill of exceptions from the record is overruled. Judgment reversed.

Ky.App. 1896.
33 S.W. 948, 32 L.R.A. 108, 17 Ky.L.Rptr. 1091, 98 Ky. 539


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