Armstrong v. Commonwealth

Decision Date13 November 1917
Citation177 Ky. 690,198 S.W. 24
PartiesARMSTRONG v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Fulton County.

George Armstrong was convicted of an offense, and he appeals. Judgment affirmed.

F. S Moore, of Hickman, for appellant.

C. H Morris, Atty. Gen., and D. M. Howerton, Asst. Atty. Gen., for the Commonwealth.

SETTLE C.J.

At the May term of the Fulton circuit court, 1916, an indictment was returned against the appellant, George Armstrong, by the grand jury, charging him with a violation of the local option law, committed by selling whisky April 23, 1916, in Fulton county. His trial under this indictment occurred September 20, 1916, and resulted in a verdict of the jury finding him guilty and fixing his punishment, upon which verdict judgment was duly entered. On May 3, 1917, the grand jury of the same county returned against appellant another indictment charging him with another violation of the local option law by the selling of spirituous liquor in the year 1917, and shortly before the finding of the indictment. The last indictment, in addition to charging the second offense mentioned, also set up the previous indictment returned against appellant at the May term, 1916, of the Fulton circuit court, and alleged his trial and conviction thereunder on the 20th day of September 1916; the object of which was to procure his conviction under an act of March 23, 1916, which provides that, for a second conviction of an offense constituting a violation of the local option law, the offender shall be confined in the penitentiary not less than one nor more than two years. The first indictment was drawn and appellant's conviction thereunder had under section 2557b, Kentucky Statutes. The second indictment was drawn under the same statute as amended by the act of March 23, 1916.

The appellant's trial under the second and last indictment occurred September 18, 1917, and resulted in his conviction; his punishment being fixed by verdict of the jury at confinement in the penitentiary one year. Judgment was entered and sentence pronounced upon appellant in conformity to the verdict. He was refused a new trial, and has appealed.

The following grounds are relied on by his counsel for a reversal of the judgment: Error of the trial court (1) in refusing him a continuance of the case; (2) in overruling his demurrer to the indictment; (3) in admitting proof of the first or former conviction.

The first complaint is without merit. Appellant's motion for the continuance was based upon his own affidavit setting forth that he was not ready for trial because of the absence of two witnesses, J. T. Johnson and J. T. Dillon. The affidavit failed to state that Johnson was served with a subp na, or that one had been issued for him. It also failed to state what facts would be testified to by Johnson if in attendance upon the trial, or that such facts would be true when stated. Obviously, he was not entitled to a continuance on account of the absence of Johnson. Criminal Code, § 189; McQueen v. Commonwealth, 88 S.W. 1047, 28 Ky. Law Rep. 20; Benge v. Commonwealth, 92 Ky. 1, 17 S.W. 146, 13 Ky. Law Rep. 308; Stephens v. Commonwealth, 6 S. W. 456, 9 Ky. Law Rep. 742; Breckinridge v. Commonwealth, 176 Ky. 686, 197 S.W. 395. The affidavit did set forth the testimony which it was claimed would be furnished by Dillon, but failed to show proper diligence in the attempt to procure his attendance, as it only stated the appellant's mere belief that he had been served with a subp na. Whether the subp na, if issued, was issued in time for obtaining service upon Dillon before the trial or was placed in the hands of the sheriff or another officer for service was not made to appear. However, the court allowed the statements attributed to Dillon by the affidavit to be read as the latter's deposition, although no such showing was made as authorized such use to be made of it. The law is that on a motion to continue the trial of a case because of the absence of a witness, or witnesses, the trial court is given a broad discretion which will not be interfered with in the absence of a sufficient showing of its abuse. Manifestly, the refusal of the continuance was not error.

As the second and third contentions of the appellant raise, in effect, the same question, they will be considered together. If the indictment was good the overruling of the demurrer thereto was of course proper, as was also the admission of proof of the former conviction allowed by the trial court. Kentucky Statutes, § 2557b, subsec. 2, defines the offense of which appellant was convicted under each of the two indictments returned against him in the Fulton circuit court, and prescribes the punishment for the offense defined. Prior to the amendment of March 23, 1916, subsection 3 of section 2557b empowered the court, upon the second or any subsequent conviction for a violation of the local option law, to require of the defendant the execution of a bond in the sum of $200 to be of good behavior for the period of 12 months, and also to increase the amount of the bond, and, upon the defendant's failure to give it, to commit him to jail for a period not exceeding 90 days, to be fixed by the court. By the amendment of March 23, 1916, subsection 3 was so amended as to read as follows:

"On the first conviction for a violation of said act, or any of its amendments, the court shall require the defendant to execute bond in the sum of $200.00 to be of good behavior for the period of twelve months. The court may, in its discretion, increase the amount of the bond, and if the bond is not given the defendant shall be committed to the county jail for a period not exceeding ninety days, to be fixed by the court. On the second or any subsequent conviction for a violation of said act or any of its amendments, committed after a former conviction for a violation of said act, or any of its amendments, the defendant shall be confined in the penitentiary for not less than one nor more than two years."

The amendment of March 23, 1916, went into effect June 18, 1916. It is patent, therefore, that the appellant's first conviction under the first indictment against him, although had after the amendment became effective June 18, 1916, was for an offense against the local option law committed before the passage of the act of March 23, 1916, and that the offense against the local option law for which he was last indicted and convicted was committed after the passage of the act of March 23, 1916, and after June 18, 1916, the date upon which it took effect. It is the contention of counsel for appellant that the increased penalty for the second offense declared by the amendment of March 23, 1916, was only intended to apply when both the first and second offenses were committed after the amendment went into effect, June 18, 1916. In other words, that in order to subject the appellant to the increased penalty provided by the amendment for the second offense, the first offense must also have been committed after June 18, 1916, and the offender indicted and convicted therefor after ...

To continue reading

Request your trial
15 cases
  • State v. King
    • United States
    • Missouri Supreme Court
    • February 14, 1955
    ...110 Mich. 676, 68 N.W. 990, 34 L.R.A. 398, 400, 64 Am.St.Rep. 376; Taylor v. State, 114 Neb. 257, 207 N.W. 207, 209; Armstrong v. Commonwealth, 177 Ky. 690, 198 S.W. 24, 26; Rand v. Commonwealth, 9 Grat. 738, 743, 50 Va. 738, 743; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 ......
  • Sturgill v. Beard
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 21, 1957
    ...no further discussion. See: May v. Moore, Ky., 249 S.W.2d 518; Commonwealth v. Harris, 278 Ky. 218, 128 S.W.2d 579; Armstrong v. Commonwealth, 177 Ky. 690, 198 S.W. 24; Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667, 106 S.W. 260, 108 S.W. 1138; Kentucky Union Co. v. Commonw......
  • Gomez v. State
    • United States
    • Texas Court of Criminal Appeals
    • May 18, 1955
    ...penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.' The case of Armstrong v. Commonwealth, 177 Ky. 690, 198 S.W. 24, 26, quotes from Cooley's Constitutional Limitations and cites Bishop's New Criminal Law, Vol. 1, Sec. 283, as well as cas......
  • Walker v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • June 24, 1921
    ... ...          The act ... of 1916 had for its object the better enforcement of the ... "local option" law then in force; and the ... constitutionality of its provision respecting increase of ... penalty for a second conviction referred to was sustained by ... us in Armstrong v. Commonwealth, 177 Ky. 690, 198 ... S.W. 24, in which we held that a defendant could be convicted ... as for a felony under the provision in question, although his ... first conviction might have been had under a local option law ... in force prior to the act of 1916. This was upon the ground ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT