Allen v. Walter

Decision Date20 February 1976
Citation534 S.W.2d 453
PartiesJames R. ALLEN, Commonwealth Attorney, et al., Petitioners, v. Ralph WALTER, Special Judge Floyd Circuit Court, Respondent.
CourtUnited States State Supreme Court — District of Kentucky

James R. Allen, pro se.

Harold Stumbo, County Atty., Prestonsburg, for petitioners.

PER CURIAM.

This is an original proceeding in which a Commonwealth's Attorney, acting with the acquiescence of the Attorney-General, seeks to prohibit the respondent, as special judge in a murder case, from entering an order reducing the charge to second-degree manslaughter and sentencing the defendant to a term of five (5) years in the penitentiary, KRS 507.040, 532.020(1)(b), over objection by the Commonwealth.

The first question to be considered in this as in any other prohibition or mandamus case is whether the applicant has an adequate remedy by appeal. If so, and if the respondent is acting within the scope of his jurisdiction, then of course the respondent is entitled to be let alone, to exercise his power as he sees fit until he is through with the case, because if what he does is wrong it can be undone in due course and in the same manner applicable to any other case. Anyone with a rudimentary understanding of the administration of justice understands of course that if every action taken or about to be taken by a trial judge were made subject to day-to-day supervision by an appellate court the result would be chaos. We take the time here to recite this elementary principle not because we suspect that any of the parties to the case may not be aware of it, but because the exhibits before us suggest that the local press in Prestonsburg, Kentucky, either is in the dark or, if it is not so benighted, prefers noise first and facts later.

It has been the petitioner's assumption here that an appeal by the Commonwealth would be limited to a certification of the law, for which reason it would not be an adequate remedy. Since the law on the subject to double jeopardy has not been entirely clear, and we have some new law respecting the Commonwealth's right of appeal, we are not disposed to criticize that assumption, but we do think it is not well taken.

Considering a 1970 amendment of the Criminal Appeals Act, 18 U.S.C. § 3731, the United States Supreme Court in Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), reiterated the principle that under the Double Jeopardy Clause of the Fifth Amendment 'jeopardy attaches when a jury is empaneled and sworn. . . . In a nonjury trial, jeopardy attaches when the court begins to hear evidence . . .. The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is 'put to trial before the trier of facts, whether the trier be a jury or a judge."

It was observed also (420 U.S. at p. 387, 95 S.Ct. at p. 1062) that the clear purpose of 18 U.S.C. § 3731 was to authorize an appeal by the United States 'so long as further prosecution would not be barred by the Double Jeopardy Clause.'

It has been well settled in this state that jeopardy does not attach until a jury has been sworn. Baker v. Com., 280 Ky 165, 132 S.W.2d 766, 767, 125 A.L.R. 691 (1939); Const. § 13. 1

So also has KRS 21.140(3) been construed as intending to allow the Commonwealth an appeal for purposes of a reversal when it will not subject the accused to double jeopardy. Commonwealth v. Devine, Ky., 396 S.W.2d 60, 61 (1965). And since the last-cited case was decided two new subsections have been added to KRS 21.140, one of which reads as follows:

'(4) When an appeal is taken pursuant to subsection (3), Court of Appeals, if the record so warrants, may reverse the decision of the circuit court and order a new trial in any case in which a new trial would not constitute double jeopardy or otherwise violate any constitutional rights of the defendant.'

Ordinarily a guilty plea is a waiver by the defendant of his right to a trial. The point is relevant here because if an irrevocable waiver has been effected...

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35 cases
  • Hoskins v. Maricle, No. 2002-SC-0579-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • August 26, 2004
    ...v. Allen, Ky., 980 S.W.2d 278, 281 (1998) (dismissal); Commonwealth v. Hicks, Ky., 869 S.W.2d 35, 37 (1994) (dismissal); Allen v. Walter, Ky., 534 S.W.2d 453, 455 (1976) (amendment); Commonwealth v. Huddleston, 283 Ky. 465, 141 S.W.2d 867 (1940) (dismissal); Slater v. Commonwealth, 239 Ky. ......
  • Hoskins v. Maricle, No. 2002-SC-0579-MR (KY 12/16/2004)
    • United States
    • United States State Supreme Court — District of Kentucky
    • December 16, 2004
    ...v. Allen, Ky., 980 S.W.2d 278, 281 (1998) (dismissal); Commonwealth v. Hicks, Ky., 869 S.W.2d 35, 37 (1994) (dismissal); Allen v. Walter, Ky., 534 S.W.2d 453, 455 (1976) (amendment); Commonwealth v. Huddleston, 283 Ky. 465, 141 S.W.2d 867 (1940) (dismissal); Slater v. Commonwealth, 239 Ky. ......
  • Walker v. Com., 2007-SC-000568-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 25, 2009
    ...as Smith observes, would be an invitation for the prejudice of an accused.26 The Commonwealth, however, directs our attention to Allen v. Walter for the proposition that the finality of a court-decreed acquittal depends upon whether the trial court formalized its ruling in the form of a sig......
  • Cardine v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • January 22, 2009
    ...at the swearing of the first witness has remained untouched for over thirty years. E.g., Graham, 562 S.W.2d at 627; Allen v. Walter, 534 S.W.2d 453, 455 (Ky.1976); Radford v. Lovelace, 212 S.W.3d 72, 79 (Ky. 2006); Commonwealth v. Lewis, 548 S.W.2d 509, 510, n. 2 (Ky.1977). Even though seve......
  • Request a trial to view additional results

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