Banks v. Commonwealth

• Decision Date: 15 December 1911
• Citation: 145 Ky. 800,141 S.W. 380
• Parties: BANKS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

141 S.W. 380

145 Ky. 800

BANKS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 15, 1911

Appeal from Circuit Court, Todd County.

Morris Banks was convicted of murder, and he appeals. Affirmed.

S Walton Forgy and Dorsey & Stanley, for appellant.

Selden Y. Trimble, Jas. Breathitt, Atty. Gen., Trimble & Bell, and Theo B. Blakey, Asst. Atty. Gen., for the Commonwealth.

CARROLL J.

The appellant under an indictment charging him with the murder of Mrs. Elizabeth Sebree was convicted and sentenced to confinement in the state penitentiary for life. His only defense was that at the time of the homicide he was afflicted with that species of insanity known as "paranoia," and therefore not responsible for his act.

Before considering the law applicable to his defense, the questions raised as to the admissibility of evidence, and the correctness of the instructions, we will dispose of some preliminary questions presented by counsel. The appellant was indicted by the grand jury of Todd county in December, 1910. At the March term, 1911, the prosecution was continued--not to the next regular term of the court which convened in July 1911, but to a special term which was called for May 5, 1911 and at this special term the trial was entered into and concluded. The order of court entered at the March term calling the special term and setting this case for trial thereat is as follows: "It appearing that it is necessary in order to transact the business of this court, it is now ordered that a special term of the Todd circuit court be and it is hereby called to meet at Elkton, Todd county, Kentucky, on Friday, the 5th day of May, 1911, for the trial of the case of the Commonwealth of Kentucky v. Morris Banks, on the charge of willful murder; and said court will continue until said case is tried and disposed of, to all of which the defendant by his attorney objects and excepts." It is now the contention of counsel for the appellant that this order calling the special term must be treated as void, and therefore, as the trial of appellant was not had at a term of the circuit court called or held under authority of law, it must be treated as a nullity, and the judgment of conviction set aside. The argument made in support of this is that the circuit judge in calling special terms exercises a limited jurisdiction, and has no authority to make the call unless it appears that the business cannot be transacted at and during the regular term fixed by the statute; and that, when a special term is called, the order of the court calling it must set out as a jurisdictional fact the reasons why it is necessary to call the term. It is provided in section 131 of the Constitution that "there shall be at least three regular terms of the circuit court in each county every year." In compliance with this section of the Constitution, provision is made in section 965 of the Kentucky Statutes (section 2812, Russell's St.) for the holding of three regular terms of the circuit court in each county in the state except in those in which they are courts of continuous session. The Constitution does not mention special terms of the circuit court or make any provision for the calling of such terms. Special terms are neither prohibited nor authorized by the Constitution, but this circumstance does not furnish any reason why the Legislature should not make provision for special terms.

It is not at all essential to the validity of legislation that there should be express warrant for it in the Constitution. The well-established principle controlling the state Legislature is that it has authority to pass such laws as are not prohibited by the Constitution. When there is no constitutional limitation upon its authority, the Legislature may act. Griswold v. Hepburn, 2 Duv. 20; L. & N. R. R. Co. v. Herndon, 126 Ky. 589, 104 S.W. 732, 31 Ky. Law Rep. 1059. [2] The Legislature, having ample authority to provide special terms, did so in section 964 of the Kentucky Statutes (section 2811, Russell's St.), reading: "In each county of said districts, except counties having continuous session, there shall be held each year the number of terms of the circuit court provided for by law, and the term in any district may be extended, if the business requires, so that it does not interfere with any other term in the district; and whenever it is necessary to transact the business, a special term may be held in any county, either by an order entered of record at the last preceding regular term in the county or by notice signed by the judge and posted at the courthouse door of the county for ten days before the special term is held. The order or notice shall specify the day when the special term is to commence, and shall give the style of each case to be tried, or in which any motion, order or judgment may be made or entered at the special term. ***" The statute leaves to the circuit judge or the judge holding the regular term the right to order a special term whenever it is necessary to transact the business of the court. There is no limitation imposed by the statute upon the authority conferred. Of course, the Legislature could not make specific provision for the calling of special terms, because the legislative department could not know in advance what the condition of the business in any given district might be or whether it would be necessary to have special terms or not; and so, as the power to order special terms must be lodged in some person or tribunal, it is apparent that the judge of the court is the most appropriate person to be vested with this authority. In the conduct of the business of the district and court the circuit judge is presumed to be, and is, better advised than any other person as to the necessity of holding special terms to transact with expedition the business of the court, and it would be a most extraordinary state of case in which we would feel inclined to interfere with the judgment of the judge as to the necessity for calling a special term. Blimm v. Commonwealth, 7 Bush, 320; Huber v. Armstrong, 7 Bush, 590; White v. Commonwealth, 120 Ky. 178, 85 S.W. 753, 27 Ky. Law Rep. 561; Penman v. Commonwealth, 141 Ky. 660, 133 S.W. 540.

Nor is counsel correct in asserting that the circuit court or the judge thereof in calling a special term is a court of limited jurisdiction, and therefore, when it acts, the record must show the facts necessary to confer jurisdiction--that is, the reason why it is necessary to call the term. It is true that, when courts of limited jurisdiction act, the record must show the existence of the jurisdictional facts. 1 Freeman on Judgments, § 123; Jacob's Adm'r v. L. & N. R. R. Co., 10 Bush, 263; Taylor v. Moore, 112 Ky. 330, 65 S.W. 612, 23 Ky. Law Rep. 1572. But the circuit court is not a court of limited or special jurisdiction. It is a court of general jurisdiction, and the presumption of validity follows all orders and judgments made and entered by it, except in cases in which the statute has expressly pointed out that certain facts must appear in the record before it can have jurisdiction, which it does not do in respect to the matter we are considering. In cases in which the statute does not expressly point out the jurisdictional facts necessary to confer jurisdiction, the party assailing the verity of its orders and judgments must affirmatively show that it did not have jurisdiction. It is not necessary that the jurisdictional facts should appear in the record. Freeman on Judgments, § 122; Jacob's Adm'r v. L. & N. R. R. Co., supra; Crown Real Estate Co. v. Rogers 132 Ky. 790, 117 S.W. 275, 136 Am. St. Rep. 202.

Coming now to the merits of the case, Mrs. Sebree, whom the appellant, an unmarried man about 26 years of age, killed, was his aunt, a widow about 60 years old, and a most estimable woman. She was killed in cold blood, without excuse or provocation, on the streets of the little town of Trenton about 10 o'clock in the forenoon. Briefly, the facts immediately relating to the homicide are these: Appellant went to the home of a Mr. Cook and borrowed a shotgun. Leaving the residence of Mr. Cook in a buggy, he drove to a point in front of the post office in Trenton. As he drove up, Mrs. Sebree was approaching in a buggy from another direction. Without speaking to any one, appellant got out of his buggy, walked a few steps towards the buggy in which Mrs. Sebree sat, and without any exchange of words between them deliberately raised his gun and fired both barrels, killing her instantly in the presence of a number of persons who were within a few feet of him. He then returned to his own buggy, placed the gun in the rear thereof, and walked down the street towards his father's home. On the way he met a Mr. Denton and got in the buggy with him, and drove to his father's, and, while thus riding, he met his sister and cousin, and said to them in substance: "You need not go to Elkton. I have shot and killed Aunt Bettye."

The commonwealth finds a motive for this atrocious crime in the fact that by the death of Mrs. Sebree appellant and his family would receive by inheritance quite a large estate. Mrs. Sebree was the widow of F. A. Sebree, an uncle of appellant, and a son of Col. E. G. Sebree. F. A. Sebree died in 1908, leaving by will his large estate in fee to his wife. The probate of the will was resisted in the county court by the heirs of Col. E. G. Sebree, but in that court the will was probated. No appeal had been prosecuted from the probate of the will at the time of the homicide, but the statute allows five years in which to take the appeal, so that there was yet ample time in which to prosecute it. It appears that Mrs. Sebree for some time before she was killed had been negotiating for the sale of all of the real estate devised to...