Blanton v. Com.
| Citation | 320 S.W.2d 626 |
| Parties | John BLANTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 28 November 1958 |
| Court | United States State Supreme Court (Kentucky) |
G. Wix Unthank, Harlan, for appellant.
Jo M. Ferguson, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.
John Blanton appeals from a conviction of voluntary manslaughter with a sentence of twenty-one years in the penitentiary. Four grounds for reversal are urged: (1) Failure to grant a continuance; (2) failure to sustain his plea of former jeopardy; (3) admission of incompetent evidence; and (4) improper argument.
The prosecution was set for trial on March 17, 1958. When the case was called, appellant filed a motion for a continuance because of the absence of Mossie Blanton, his wife, and Walter Roark. The case was reassigned for trial on March 18, 1958, with the approval of counsel for appellant. Process was issued to secure the attendance of the absent witnesses. They were arrested and held in the Harlan County Jail until March 20, 1958. The testimony in the case was introduced on March 19 and 20, 1958. Neither witness was introduced in behalf of appellant although both were available. The denial of a continuance was proper.
At the beginning of the trial, appellant entered a plea of former jeopardy, or, more properly, former acquittal. Criminal Code of Practice, Section 172. The basis of the plea was that in this prosecution appellant had been indicted for murder, had been tried and convicted of voluntary manslaughter, which conviction had been set aside on his motion for a new trial, and he again was being brought to trial for murder under the same indictment. Appellant contends that the first trial on the murder charge, with a resulting conviction of voluntary manslaughter, was an acquittal on the charge of murder; hence, the second trial on the same murder indictment was double jeopardy as to the murder charge.
Appellant's contention is based on Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed. 199, 61 A.L.R.2d 1119. It was there held that a second trial for first degree murder placed a defendant in jeopardy twice for the same offense in violation of Amendment V, United States Constitution, when at his first trial on that charge the jury, without mentioning the charge of first degree murder in its verdict, found him guilty of second degree murder under instructions of the trial judge on both first and second degree murder, and upon his appeal, the appellate court reversed his conviction of second degree murder. The verdict finding the defendant guilty of second degree murder was regarded as an implicit acquittal on the charge of first degree murder.
The federal prohibition against double jeopardy is in the same language as Section 13, Kentucky Constitution, which is:
'No person shall, for the same offense, be twice put in jeopardy of his life or limb, * * *.'
Commonwealth v. Olds, 5 Litt. 137, 15 Ky. 137, and Williams v. Commonwealth, 78 Ky. 93, are cited by appellant in support of his contention. An examination of these cases discloses that they are distinguishable on the facts but in principle are in accord with the law, as set forth in Commonwealth v. Arnold, 83 Ky. 1, 6 Ky.Law Rep. 181, 4 Am.St.Rep. 114.
The facts in the Arnold case are similar to the facts here. In the Arnold case, the defendant was indicted for murder, and when tried was convicted of manslaughter. That conviction was reversed and a new trial granted. On the second trial, the accused's plea of former acquittal as to the charge of murder was sustained on the theory later upheld in the Green case. The Commonwealth appealed, insisting that the trial court was in error in sustaining the plea.
This Court, in holding the trial court in error, relied on Criminal Code Section 270, which is:
In the Arnold case, it was held that the state, in granting the right of appeal or the right of new trial, may hedge the right about with such restrictions as it may see fit to impose, and that when one who has been convicted of manslaughter under an indictment for murder is granted a new trial, he is in the same position as if no trial had been had. This is a rule of long standing in this Court. Haskins v. Commonwealth, 1 S.W. 730, 8 Ky.Law Rep. 419; Wells v. Commonwealth, 6 S.W. 150, 9 Ky.Law Rep. 658; Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091, 22 Ky. Law Rep. 1111; Newton v. Commonwealth, 197 Ky. 496, 247 S.W. 707; Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757.
In Hoskins v. Commonwealth, 152 Ky. 805, 154 S.W. 919, the defendant was indicted for murder. On the first three trials, the jury was unable to agree. On the fourth trial, he was found guilty of manslaughter. On appeal, the judgment was reversed because of defects in the indictment and in an instruction. See Hoskins v. Commonwealth, 145 Ky. 580, 140 S.W. 1040. On the return of the case to the circuit court, the indictment was set aside and a new indictment found. Thereafter, on the call of the case for trial, the defendant entered a plea of not guilty and of former jeopardy. A demurrer was sustained to the plea of former jeopardy. On the trial, the defendant was jound guilty of murder. The judgment was affirmed. The Court rejected the argument made concerning the plea of former jeopardy on the basis of the rule in the Arnold case.
The courts are divided on the two rules as embodied in the Green and Arnold cases. See Annotation, 61 A.L.R.2d 1141; 15 Am. Jur., Criminal Law, Section 428, page 91; 22 C.J.S. Criminal Law Secs....
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United States v. Wilkins
...State v. Schoel, 54 Wash.2d 388, 341 P. 2d 481 (1959); reaching a similar result under state constitutions. Contrast, Blanton v. Commonwealth, 320 S.W.2d 626 (Ky.1958); State v. Thomas, 88 Ariz. 269, 356 P.2d 20 (1960). For the state law prior to Green, see generally, Annot. 61 A.L.R.2d 114......
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People ex rel. Hetenyi v. Johnston
...Green (State v. Schoel, 341 P.2d 481). Kentucky on the other hand has reaffirmed its position as contra to the Green case (Blanton v. Commonwealth, 320 S.W.2d 626, 628). It perhaps should be pointed out additionally that there is one factual distinction between Green and the present case. T......
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State v. Thomas
...listed in footnote 4 of the Green case as permitting retrial for the greater offense, have adhered to that position (Blanton v. Commonwealth, Ky., 320 S.W.2d 626; People ex rel. Hetenyi v. Johnston, 10 A.D.2d 121, 198 N.Y.S.2d 18); two other states similarly listed have since held, in relia......
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Hemphill v. Com.
...second trial of defendant for first degree murder violated the constitutional prohibition against double jeopardy. In Blanton v. Commonwealth, Ky., 320 S.W.2d 626 (1959), the Kentucky case relied on by the Commonwealth, the rule of Green was held not to apply to a prosecution by the state o......