Aldridge v. Com.

• Decision Date: 24 June 1921
• Citation: 192 Ky. 215,232 S.W. 619
• Parties: ALDRIDGE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

232 S.W. 619

192 Ky. 215

ALDRIDGE v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 24, 1921

Appeal from Circuit Court, Daviess County.

Jack Aldridge was convicted of robbery, and appeals. Affirmed.

Floyd J. Laswell and Wilbur K. Miller, both of Owensboro, for appellant.

Chas I. Dawson, Atty. Gen., C. E. Smith, of Hartford, and H. A Birkhead, of Owensboro, for the Commonwealth.

QUIN J.

Appellant was indicted for the crime of robbery, and at the indicting term was tried, found guilty, and sentenced to a 10-year term in the penitentiary. Dissatisfied with this judgment, he has appealed.

The first and chief point urged for reversal is directed to the effect of a motion for a continuance on account of the absence of certain witnesses. According to the affidavit these witnesses, had they been present, would have testified to facts showing appellant was not guilty of the offense charged. The commonwealth objected to the motion, but agreed to admit the evidence in so far as competent and relevant whereupon the court overruled the motion and proceeded to try the case.

Section 189 (then 190) of the Criminal Code, as originally adopted in 1854, reads as follows:

"The provisions of the Code of Practice in civil actions, in regard to postponements of the trial of actions, shall apply to the postponement of prosecutions, by the defendant."

This provision was carried forward in subsequent Codes, with certain modifications, so that at the beginning of 1886 said section read as follows:

"The provisions of the Code of Practice in civil actions, in regard to postponements of the trial of actions, shall apply to the postponement of prosecutions, on application of the defendant, except that, when the ground of application for a continuance is the absence of a material witness, and the defendant makes affidavit as to the facts which such witness would prove, the continuance shall be granted, unless the attorney for the commonwealth admit upon the trial that the facts are true."

At its 1886 session (Acts 1885-86, p. 112) the General Assembly passed an act entitled "An act to regulate continuances in criminal and penal cases." In the first section of said act it is provided that the attorney for the commonwealth shall not be compelled, in order to prevent a continuance, to admit the truth of the matter set forth in the affidavit for a continuance, but only that such absent witness would, if present, testify as alleged in the affidavit, in which event accused could read the affidavit as a deposition, subject to exception for irrelevancy or incompetency. Then, too, the court is given the discretionary power, if the needs of justice require it, to grant a continuance unless the commonwealth's attorney will admit the truth of the matter alleged.

In section 2 of the act it is provided that section 1 shall not apply to a motion for a continuance made at the same term at which the indictment is found. These two sections of the 1886 act have been incorporated in and as a part of all the editions of the Code subsequent to 1886.

Construing the law as it existed prior to 1920, this court, in Tolliver v. Commonwealth, 161 Ky. 81, 170 S.W. 515, held that, where the defendant files an affidavit for continuance, and the attorney for the commonwealth agrees that it might be read as the deposition of certain absent witnesses, if the trial takes place at the indicting term, the defendant is entitled to a continuance unless the facts stated are admitted as true. In that case the defense was that the killing was done in self-defense by the defendant, the court saying:

"If the affidavit had been admitted as true it would in effect have been admitted that the shooting was done in self-defense, and all proof to show the contrary would have been inadmissible on behalf of the commonwealth."

And this notwithstanding the fact that Tolliver had at the trial several witnesses who testified to the same facts set out in the affidavit, the court saying that--

"The jury were at liberty not to believe these witnesses, and if the affidavit had been admitted to be true they would have been required to accept it as true."

At its 1920 Session the General Assembly passed an act entitled--

"An act to amend and re-enact section 189 of the Code of Practice in criminal cases, relating to continuances." Acts 1920, c. 57, p. 244.

In the preamble to said act it is provided:

"That section 189 of the Code of Practice in criminal cases be, and the same is hereby, amended and re-enacted, so that same when amended and re-enacted shall read as follows."

Then follows a verbatim copy of the first section of the 1886 act. It is the contention of appellant that he was entitled to a peremptory instruction in his favor, unless the 1920 act changed the law. It is his contention that the 1920 act is void, because it does not conform to the requirements of section 51 of the Constitution, which reads as follows:

"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be re-enacted and published at length."

It is said that, while the act relates to only one subject that subject is not expressed in the title as required by the provision supra. The argument is made that the body of the act does not deal with section 189 at all, but is merely an amendment to the 1886 act. It is stated that only as an amendment to section 189 can the act be sustained, but it is argued to so hold would result in repealing the general provisions of the section relating to the applicability of provisions of the Civil Code in the matter of continuances in criminal cases. And it is earnestly insisted that such a result could not have been intended by the Legislature.

In Breeden v. Commonwealth, 151 Ky. 217, 151 S.W. 407 Rhodes v. Commonwealth, 151 Ky. 534, 152 S.W. 549, Lawson v. Commonwealth, 159 Ky. 757, 169 S.W. 494, Breeding v. Commonwealth, 190 Ky. 207, 227 S.W. 151, as well as in other cases, the act of 1886 has been considered and treated as an amendment to section 189. The act of 1920 shows on its face an intention not to add words to the existing section, but to so change it to make it read as therein set out. It will be observed it provides that said section (189) "is hereby amended and re-enacted so that same when amended and re-enacted shall read as follows." The words following this preamble are the provisions which, as the act provides, shall constitute and compose...