Opinion
December 15, 1939.
Appeal from Knott Circuit Court.
John W. Caudill, Judge.
Carl Perkins, Walter Gardner and L.J. May for appellants.
Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
Affirming.
Appellants have been convicted of murder and sentenced to imprisonment for life. By this appeal they are seeking reversal of the judgment on the grounds (1) that the court erred in overruling their motion for change of venue and (2) that the court erred in not instructing on the whole law of the case.
Appellants were indicted with Herald Johnson, Jarvey McCoy and D.K. Newsome for the murder of Ishmael Hopkins. Herald Johnson on separate trial had previously been convicted of the charge in the indictment and sentenced to life imprisonment. On appeal the judgment against him was affirmed by an opinion reported in Johnson v. Com., 279 Ky. 753, 132 S.W.2d 72. The same grounds for reversal were relied on in the Johnson case and the court in disposing of those grounds set forth at length in substance the material evidence heard on the trial as well as on the application for change of venue and which in all material respects is the same as that heard on the trial of this case. Since the evidence heard on appellants I motion for change of venue is the same as that heard on similar motion in the Johnson case we adhere to the conclusion reached by this court in the Johnson case that appellants did not manifest the right to change of venue and there was no abuse of discretion on the part of the lower court in denying their motion.
It was also argued in the Johnson case as it is here that the instructions should have embraced the right of appellants to protect their home and premises but on the same proof it was held that no such instruction was authorized. Reference is made to the opinion in the Johnson case for a full statement of the facts and circumstances and on the authority of that case the judgment must be and is affirmed.