Commonwealth v. Pratt

240 S.W.2d 635, 1951 Ky. LEXIS 1013

• Court: Court of Appeals of Kentucky
• Decided: June 15, 1951
• Status: Published

Opinion

WADDILL, Commissioner.

Wiley Pratt has been indicted for the murder of Hillard Amburgey. The attorney of the Commonwealth filed petition for a change of venue. KRS 452.220. A demurrer thereto was sustained. Conceiving that the court erred in its ruling, the Commonwealth has appealed seeking a certification of the law. Commonwealth v. Cooper, 295 Ky. 247, 173 S.W.2d 128. Under the circumstances, the only question presented is whether the petition states stifficient reasons for the change of venue.

It would encumber this opinion to enumerate, the many grounds set forth in the petition. Suffice it to say that we find that the reasons alleged are adequate. Keeling v. Commonwealth, 178 Ky. 624, 199 S.W. 789. If desired, the defendant may ■controvert them; thus making an issue for the court to determine.

Ordinarily the granting or refusing a change of venue is a matter within the sound discretion of the trial court, but the court cannot act arbitrarily or capriciously. Commonwealth v. Caldwell, 236 Ky. 349, 33 S.W.2d 1.

The court should overrule the demurrer and proceed not inconsistent with this opinion.

Appellee’s motion to dismiss the appeal is overruled in accordance with the provisions of Section 335, Criminal Code of Practice..

The law is so certified.