Bartram v. Commonwealth

• Decision Date: 25 February 1930
• Citation: 25 S.W.2d 378,233 Ky. 244
• Parties: BARTRAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

25 S.W.2d 378

233 Ky. 244

BARTRAM v. COMMONWEALTH.

Court of Appeals of Kentucky

February 25, 1930

Appeal from Circuit Court, Boyd County.

Kate Bartram was convicted for possession of intoxicating liquor and she appeals. Reversed, with directions.

John W McKenzie, of Ashland, for appellant.

J. W Cammack, Atty. Gen., and G. H. Mitchell, Asst. Atty. Gen for the Commonwealth.

THOMAS C.J.

The county judge of Boyd county issued a warrant of arrest for the appellant, Kate Bartram, charging her with the offense of possessing intoxicating liquor in violation of law. At her trial before that officer she was convicted, and she prosecuted an appeal to the Boyd circuit court. The case was set for and was tried at the September, 1929, term of that court, by a default judgment against appellant, wherein she was convicted and punished by a fine of $300 and 60 days' confinement in the county jail. At the same term of court she appeared by counsel and entered motion to set aside the default judgment and grant her a new trial upon two grounds: (1) That she was misled as to the day upon which the prosecution would be called for trial in that court, and for which reason she was not present to present her defense, which she claimed she had; and (2), that the court, at the default judgment trial, without her knowledge or consent and contrary thereto, instructed the jury orally in violation of the express terms of section 225 of our Criminal Code of Practice, saying: "The court shall, on the motion of either party and before any argument to the jury, instruct the jury on the law applicable to the case, which shall always be given in writing."

Whether ground 1 was or not sufficient to authorize the court to sustain the motion and set aside the judgment we need not determine, in view of the fact that this court has construed and applied the inserted section of the Criminal Code to mandatorily require the court to give written instructions in criminal prosecutions, unless waived by defendant, which it is not contended was done in this case; and because of all of which we will not discuss or determine that ground.

In admitting the error of the trial court in not sustaining ground 2, the brief for the commonwealth says: "The Court seems to have laid down the rule that written instructions can be waived by the parties consenting thereto in misdemeanor cases, but that since the defendant was not present, she could not and did not waive the requirements of section 225, Criminal Code of Practice. We are unable to agree that this Court has in any way departed from the decision in that (Ferguson) Case, 141 Ky. 457, 132 S.W. 1030 but on the other hand the Court has shown a tendency to restrict any exception to Section 225, Criminal Code of Practice. *** As we view the matter, these decisions are controlling." Among the numerous cases so construing that section are Payne v. Commonwealth, 1 Metc. 370; Coppage v. Commonwealth, 3 Bush, 532; Harris v. Commonwealth, 141 Ky. 70, 132 S.W. 148; Ferguson v. Commonwealth, 141 Ky. 457, 132 S.W. 1030; Allen v. Commonwealth, 148 Ky. 327, 146 S.W. 762; Adams Express Company v. Commonwealth, 163 Ky. 275, 173 S.W. 764; Siler v. Commonwealth, 195 Ky. 829, 243 S.W. 1030; ...