13 Ky.L.Rptr. 132
Court of Appeals of Kentucky.
May 30, 1891.
ACTION: Reversed

Appeal from circuit court, Boyle county.
"Not to be officially reported."

Early in February, 1891, the appellants, Pomp Bates and George Word, rafted some timber from their home in Clay county down the Kentucky river to Frankfort, arriving at their destination on the evening of the 5th day of the month. They left for home on the same day on a night train, going via Lexington and Junction City, which was the usual route back to their homes. They, with other raftsmen, arrived at the last-named town some time before daylight on the morning of the 6th of February, where they had to change trains, and where they learned they would have to wait several hours before they could get a homeward bound train. Shortly after daylight the appellant Bates and two other raftsmen, Little and Neal, went to the saloon of one Russel, where each got a drink, the price paid for the three being 30 cents. After paying for them, Little asked Russel if he did not sell three drinks for a quarter. The response was, sometimes he did, and sometimes he did not. This conversation was repeated, when Russel ordered them out of the saloon, at the same time reaching under his counter as if for something to enable him to enforce his order. As he did so, Little and Bates put their hands in their pockets, as if to draw weapons, but none were exhibited, one of them having first told Russel to put them out. They then left the saloon, and all trouble for the time ended. Soon after Russel told one Sampson, and he in turn told his brother-in-law, George Wells, what had occurred. The latter claimed to be the marshal of the town, and he summoned Sampson and Russel to go with him, and arrest the men who had been at the saloon. It does not appear upon what charge, but presumably upon the idea that they were carrying concealed deadly weapons. They were found in company with other raftsmen, among whom was the appellant Word, at an eating-house, waiting for their breakfast. The testimony is uncontradicted that when Wells and his assistants arrived there all was quiet and peaceable. Russel remained at the outer door, having pointed out Little and Bates as two of the men who were at his saloon. Sampson and Wells--the latter, as the testimony tends to show, having a drawn pistol--approached Little, commanding him to give up his arms. He at once got out his pistol, and surrendered it. They took him to the door, and put him in charge of Russel. At this time the appellant Bates was sitting to one side asleep. He had been complaining of feeling badly, and was no doubt worn out with his trip, he having been the steersman upon his raft in coming down the river. Wells and Sampson took hold of him, or, possibly, but one of them, the testimony tending to show, however, that each then had a drawn pistol in his hand. As Bates awoke and raised up he started to draw his pistol. There was a little scuffle. Just then the appellant Word, who was near, said with an oath, "Turn him loose." Immediately he and Sampson fired at each other. It is doubtful which one did so first. A general fight at once ensued, in which a good many shots were fired. There is evidence tending to show that both Bates and Wells used their pistols, the latter being killed, and, as indicated by circumstances at least, the appellant Bates fired the fatal shot. The contending parties appear to have been strangers to each other. Wells had on the usual dress of a police officer; but there is testimony showing that the employes of the railroad dressed much the same way. Under our law one who is in fact a peace officer can only make an arrest in obedience to a warrant, or, without one, when a public offense is committed in his presence, or he has reasonable grounds for believing that the person he is about to arrest has committed a felony; and a private person may do so when he has reasonable grounds for believing that the party has committed a felony. If there be reasonable opportunity, the person attempting to make the arrest must inform the party about to be arrested of his intention, of the offense charged, and, if acting under a warrant, must say so, and, if demanded, show it. These statutory provisions have been enacted as a safeguard of that personal liberty the careful protection of which is the boast of the common law, and to which every person, without regard to condition in life, is entitled. The parties who were attempting to arrest the appellants had no warrant, nor did they give any notice of their purpose. In law they stood upon the footing of private individuals merely, and the lower court properly adopted this view in instructing the jury. The appellants were indicted for murder, found guilty of manslaughter, and their punishment fixed at the highest limit, to-wit, 21 years' confinement of each in the penitentiary. They complain of the result upon several grounds. The court, over their objection, allowed witnesses to testify in substance that Wells was marshal. This, however, was cured by an instruction to the jury that he was not such officer. The appellants could not, therefore, have been prejudiced by this evidence.

Two other objections are, however, urged, which, to our minds, show that the accused did not have such a trial as is guarantied to them by the fundamental law of the land. They consist in the conduct of the argument of the case by the prosecuting attorneys, and the refusal of the court to grant a continuance, or at least a delay, of the trial until the attorney upon whom the accused relied could be present. As already said, the court in structed the jury that the deceased was not the marshal of the town. Afterwards, and during the argument of the case to the jury, some of the attorneys for the state asserted that he was; and one went so far as to say: "Wells went to the Gains House to arrest defendants, dressed as marshal, with blue coat on, with brass buttons, and marshal's shield on breast of his vest. He believed he was marshal, and had the right to arrest defendants. Defendants knew Wells was marshal, because Ed. Gains, in their presence and hearing, said: 'Hold on, don't shoot; that is the marshal."' The appellants at the time objected to these statements; but the court, although it had in effect already excluded this evidence by telling the jury that the deceased was not marshal, overruled the objection, and permitted the attorneys to make them. This ruling was contradictory of the instructions. It was made in the presence of the jury, and without any qualification even. Their attention was specially called to the matter by the objection of the appellants; and the failure of the court to sustain it, and either stop the attorneys from making such statements, or warn the jury that they must not consider them, might well be regarded by them as a legal sanction of their truth and correctness in law. Considerable latitude must, of course, be allowed to counsel in the argument of cases; but this contradiction in the action of the court was well calculated to mislead the jury, and prejudice the appellants. We might hesitate to reverse the judgment *530 upon this ground alone; but another error supplements it, and the two, taken together, manifest that although the case was tried before a judge deservedly eminent for ability and impartiality, yet the appellants have not had a fair trial. The affidavit for a continuance disclosed that the appellants had employed a lawyer of their own county, in whom they had confidence, and upon whom they relied to attend to their case; that he was the first attorney retained by them; was at their examining trial; had consulted with them, and in fact understood their case better than any one else, including themselves, owing to their having been confined in jail, and unable to see to it in person; that they were informed by telegram from him that, owing to duties incumbent upon him as an officer of the United States, he could not be in attendance on the day fixed for the trial, but could be present by the second day thereafter. A refusal to grant a continuance is, under section 280 of our Code, subject to exception. If it appear that the defendant is entitled to it, then a refusal of it is ground for reversal upon appeal. If it were not so, then the accused would be deprived of a fair trial. If, for instance, a material witness for him be absent, and due diligence has been exercised to procure his attendance, it would be a reversible error to compel the defendant to try without having the benefit of the testimony. We do not, of course, mean that the trial court has no discretion in the matter of continuances. It is, however, a legal one; and, if it be so exercised as to deprive the accused, when not in fault, of a fair trial, justice requires that he should not be remediless. This killing took place on the 6th of February. The appellants were away from home, and among strangers. They were arrested upon the same day, and confined in jail until their conviction. The indictment was found on the 18th day of the month, and, their motion for a continuance having been overruled, they were at the indictment term tried and convicted on the 2d of March,--all within 24 days. While a speedy transaction of judicial business is to the interest of the public, yet it should never be had at the expense of justice, which must always be regarded as the paramount purpose of judicial investigation. It is true, cases should not ordinarily be continued upon the sole ground of absence of counsel. Wharton says: "Continuances, on motion of the defendant, may be granted on three principal grounds: * * * (2) On affidavit setting forth the inability of the defendant, and, in certain extreme cases, of his counsel, to attend the trial." One accused of crime should not be forced to trial at the indictment term in the absence of his counsel, or of an attorney upon whom he mainly relies in good faith to conduct his defense. Here the accused were upwards of 100 miles from home. They appear to have at once employed a lawyer of their own county, well known to them, and in whom they not only say, but it may be presumed from their acquaintance with him, they had full confidence. So far as this record shows, they in good faith relied upon him to conduct their defense. They were indicted in a few days after the kiling. They were in jail; and in twelve days after they were indicted they were tried and convicted, although the court had notice from their affidavit that the attorney upon whom they relied would be present in two days thereafter. The case should either have been continued until the next term or until the time when the attorney had telegraphed he would be present. The circumstances made it one of those "extreme cases" where continuances should be granted, and the refusal of it was such an abuse of legal discretion as requires the interference of this court.

Judgment reversed, and cause remanded for a new trial.

Ky.App. 1891.
16 S.W. 528, 13 Ky.L.Rptr. 132

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