concurring.
I concur with the result reached by the majority, but write separately to express the view that we should definitively construe KRS 452.220 and suggest the manner of construction.
Sections (2) and (3) of KRS 452.220 detail the procedure to be observed when a defendant wishes to obtain a change of venue. As a threshold matter, the defendant is required to file a verified petition and support it by the affidavits of
“at least two (2) other credible persons, not kin to or of counsel for the defendant, stating that they are acquainted with the state of public opinion in the county objected to, and that they verily believe the statements of the petition for the change of venue are true.”
It is evident that this statute simply prescribes a form for the affiants to state that they believe the defendant’s contention that he cannot get a fair trial. It amounts to nothing more than a verification which must be made before the defendant is entitled to go forward.
The substance of the process of adjudication is governed by section (3) of the statute. This section states that the court shall hear all witnesses produced and determine from the evidence whether the defendant shall have a change of venue. As the defendant bears the burden of showing that he cannot get a fair trial in the county in which the offense was committed, a failure to present evidence at the hearing would necessarily result in a decision in favor of the Commonwealth. Said otherwise, the defendant bears the burden of proof and the Commonwealth need not present any evidence until the defendant has made a prima facie case at the hearing in open court.
Once and for all, we should end the confusion about this statute by overruling Miller v. Commonwealth, 248 Ky. 717, 59 S.W.2d 969 (1933), and its progeny. We should flatly declare that by filing the petition and affidavits described in section (2), a defendant moving for a change of venue shall have a hearing. We should also hold that the movant for change of venue bears the burden of persuading the court that he cannot receive a fair trial in the venue otherwise required by law.
SPAIN, J., joins in this concurring opinion.