Smith v. Buchanan

• Decision Date: 05 June 1942
• Citation: 291 Ky. 44,163 S.W.2d 5
• Parties: SMITH v. BUCHANAN.
• Court: Kentucky Court of Appeals

163 S.W.2d 5

291 Ky. 44

SMITH v. BUCHANAN.

Court of Appeals of Kentucky

June 5, 1942

Appeal from Circuit Court, Lyon County; Ira Smith, Judge.

Habeas corpus proceeding by Otis Peter Smith against W. Jess Buchanan. From a judgment dismissing petitioner's application for the writ, petitioner appeals.

Affirmed.

C Ewbank Tucker, of Louisville, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

THOMAS Justice.

The appellant and petitioner below, Otis Peter Smith, and one John Wesley Williams were indicted in the Jefferson circuit court charged with the murder of Edward Hite. At his separate trial appellant was found guilty with punishment fixed by the jury at death by electrocution. He appealed to this court resulting in an affirmance of the judgment, the case being reported in 288 Ky. 831, 157 S.W.2d 79, under the style of Smith v. Commonwealth. After the conviction appellant was transferred to the penitentiary at Eddyville awaiting the day of his execution, during which time he petitioned the judge of the Lyon circuit court, Hon. Ira D. Smith, for a writ of habeas corpus upon the ground that the Jefferson circuit court, Criminal Branch, wherein his trial and conviction was had, failed to appoint him counsel to defend the prosecution against him after he had notified the court that he desired such an appointment to be made. However, the futility of the order of the court in compliance with that request did not disclose the failure of the court to comply with it, and which was because both the accused on trial (appellant) and the court were deceived, and made to believe that the court had complied with the request as contemplated by the law. The deception arose in this manner: A colored man by the name of Albert W. Holland, for some considerable period ante-dating the trial of appellant on the indictment against him, appeared in Louisville, Kentucky, and posed as a duly licensed and authorized attorney, with the right to practice his alleged profession and thereafter did engage in its practice in the courts of Louisville, at least to a limited extent. When the court inquired of appellant if he had counsel and if not whether he desired the court to appoint one to represent him, and when that inquiry was followed by an answer to the effect that appellant had no employed counsel and desired the appointment of one by the court, the appointment of Holland was made and he conducted the trial of appellant on the murder indictment against him.

After appellant was convicted Holland prosecuted an appeal to this Court for his client, resulting in our opinion supra, affirming the lower court's judgment. Following that affirmance, and before the date set for appellant's execution by appellee, Jesse Buchanan, the warden of the penitentiary at Eddyville, Kentucky--whose duty it is under the law to enforce the judgment of the court in such convictions--the application for the writ of habeas corpus herein sought was made as hereinbefore stated, with no other respondent therein except Buchanan. Upon the trial of the application for the writ the learned judge of the Lyon circuit court overruled appellant's motion and dismissed it, from which judgment he prosecutes this appeal.

Prior to the effective date of chapter 93 of the Acts of 1940, page 375, there was no appeal allowed from judgments of inferior courts to this one in habeas corpus applications, but the enactment referred to amended section 429 of the Criminal Code of Practice and created the right of the Parties litigant in such applications to appeal from the judgment of courts of original jurisdiction in such cases the same as in other cases. Under the provisions of that amendment we are given the right to review the judgment of the court appealed from.

The learned trial judge correctly held that the writ of habeas corpus does not lie, except only to relieve the petitioner of a sentence imposed upon him as a punishment for his committed crime when the judgment is invalid to the extent of rendering it void, and when the invalidating defects are shown in the record of the trial. But when they are not so shown, and only lurk in the case because of burial therein and they are unknown to the defendant or the court, and because of which a right to which defendant is entitled is denied him, the writ of habeas corpus will not lie to correct the unknown or undiscovered error. An elaborate consideration of the questions was made by us in the case of Jones v. Commonwealth, 269 Ky. 772, 108 S.W.2d 812. The same conclusion was advanced by us in the case of Commonwealth ex. rel. Atty. Gen. v. Gresham, 196 Ky. 27, 244 S.W. 66. In those cases others are cited to the same effect, and which declarations are approved by all text-writers dealing with the character of relief that may be corrected on habeas corpus hearings, some of which are cited in the cases referred to, and particularly in the Jones opinion.

We have seen that the error sought to be corrected by appellant in this his habeas corpus application to Judge Smith was a hidden and unknown one at the time of appellant's trial in the Jefferson circuit court, criminal division, and for that reason, under the authorities supra, the habeas corpus writ may not be employed to correct such hidden error. Moreover, the error complained of, while depriving appellant of a constitutional right to be represented by counsel, yet a failure to extend that right would not ipso facto render the judgment of conviction void, since it is admitted that the Jefferson circuit court, in which appellant was tried and convicted, had and possessed jurisdiction of both the subject matter and of defendant's person, and the complained of error crept into the case because of the reasons above stated. It, therefore, could not be and was not presented to this court on appeal from the judgment of conviction, and our affirmance of that judgment involved no consideration or determination of it.

We are aware that some opinions of some courts appear to hold that a denial to a litigant of some...