Blimm v. Commonwealth
| Decision Date | 22 October 1870 |
| Citation | 70 Ky. 320 |
| Parties | Blimm v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM BOONE CIRCUIT COURT.
S. A HAGERTY, GEO. C. DRANE, JOHN L. SCOTT, For Appellant,
Constitution of Kentucky, sections 16, 17, article 4.
Revised Statutes, article 12, chapter 27, 1 Stanton, 321.
JOHN RODMAN, Attorney-General, For Appellee.
OPINION
The appellant, Peter Blimm, charged with the wanton murder of a little white boy, without any known provocation or apparent motive, was indicted, tried, and sentenced to the gallows at a special term of the Boone Circuit Court, ordered only a few days after the homicide, and commencing on the eighth day after the order was made in vacation.
His appeal to this court, urging various objections to the judgment, asserts in limine that the special term held without the notice prescribed by law was illegal, and that for want of jurisdiction the verdict and judgment against him are void.
If, as thus assumed, the sentence was not a judicial act, this court can not judicially revise and reverse it; and the appellant's only lawful appeal would be to another department of the government not fettered, as this court is by inexorable law.
But in our judgment the circuit court had jurisdiction to order the grand jury, and special juries, try the appellant on the indictment found by that grand jury, and sentence him to be hung on the verdict of " guilty" by that chosen venire.
The following quotations from section 1 and subsection 2 of article 12, chapter 27, Stanton's Revised Statutes, p 321, present all that is here material of the statutory law regulating special terms of the circuit courts:
The constructive object of the prescribed notice decides the question of jurisdiction. Did the legislature intend that ten days' notice should be indispensable to the jurisdiction, or, in other words, a fundamental condition of the validity of the proceedings of the called term, or intend only that the requisition of the notice should be merely directory or precautionary? It seems to us that the latter was the sole purpose. If the former be adjudged to be the legislative purpose, its comprehensive effect would be to make void not only all criminal convictions and preparatory orders and proceedings, but all preparation, orders, and decrees in chancery. This would be vexatious and perilous without adequate notice, and far beyond the prudent policy or presumable aim of legislative wisdom.
The contemplated publication, if attempted as required, might be immediately destroyed, or, if not torn down, might give no actual notice to any person interested. And can it be reasonably presumed that the legislature intended that the jurisdiction of the court should depend on so slight and trivial a circumstance as putting on the court-house door a paper subject to so many accidents, and at best so uncertain and fallible, as a notice to all concerned? Moreover, if the order be made at a regular term, no such notice is required but the special term may be held without question the next day after the order for it had been entered on the record-book of the court. And even if that order should not be recorded before the commencement of the special term would the omission vacate the term? We can not so think. And unless it would the question in this case is concluded. The fact that no extensive notice is required when the order is made in court shows that, when made out of court, the posting of it on the court-house door is required not to give jurisdiction, but only to guard in that way against surprise by what may be publication of the order. Had it been put up as required, the appellant could not have been benefited by it otherwise than by affording him time to escape. He could not have introduced evidence before the grand jury, and the nonpublication could at the utmost have operated on him as a surprise which might have entitled him to some postponement of his trial.
The law organizing circuit courts, and fixing the terms during which they shall sit, if necessary, may not deny their inherent power to prolong any of those terms or order special terms without express statutory authority; and the statutes on that subject may have been intended not so much for giving that power as for directing the mode of exercising it. On this hypothesis, which we consider maintainable, no such directory statute gives the jurisdiction, and non-conformity to the prescribed direction can not divest it as pre-existing. But if mistaken in this, we still think that the statute we are now considering is only directory.
The judge who ordered the special term was still judge of the same court when he presided over the trial at the special term. He had pre-existent jurisdiction over such homicide committed in Boone. Consent could not give it, nor opposition divest it. The said subsection 2 also provides that parties may agree to a special term. But unless the court would have jurisdiction without their authority or acquiescence their consent could not give it, and the only object or effect of their consent would be to preclude any pretense of surprise at the holding of the special term. And this clearly indicates that the legislature required the notice not to legalize the special term or give the judge jurisdiction, but solely to prevent surprise; and this is as manifest as if the act, after allowing a special term, had said, " but for the convenience of parties concerned, and to prevent surprise, the order, if made in court, shall, without other notice, be entered on the record, so that the bar may know it; or, if made in vacation, shall be posted up on the court-house door for ten days." Could there then be any doubt that it would be the order, and not the quasi notice of it, that would give the court jurisdiction? And this is the constructive aim of the act as clearly as if it had been explicitly so declared. The act contains nothing implying that the prescribed publication is the condition on which the special term may be held, or that it shall be a legal nullity without such publication. But the contrary is implied by the context, object, and character of the enactment.
As to jurisdiction therefore the circuit judge had all the judicial power which he could have exercised over this case at a regular term of his court. (In this conclusion Judge Hardin does not concur.) Then we must revise the case within the scope of our circumscribed jurisdiction over judgments in criminal proceedings.
The only contestible question in the record within the range of our appellate power is involved in instructions, and that is confined to the hypothesis assumed on the testimony that when the homicide was perpetrated the appellant was drunk; which fact, according to the case of Smith v. The Commonwealth, 1 Duvall, 224, to which we adhere, may under peculiar circumstances repelling malice reduce the grade of the crime from murder to manslaughter. But this mitigating tendency of intoxication is not allowable when that condition of mind has been produced for the purpose of stimulating a meditated felony, or even when it is known to excite homicidal or other destructive passions, because such an inebriate, hostis humani generis, evinces express malice. But when, in the absence of any such aggravating circumstances, a responsible being, drunk from accident or mere sensuality, takes human life without rational motive, and which he never would have attempted, but always would have revolted at, when sober and self-poised, the principle of the decision in Smith v. The Commonwealth allows the jury to consider the abnormal condition of the mind and passions so superinduced as a circumstance which, while it should not excuse, may tend to repel the implication of malice essential to the crime of murder.
In this case it appears that the appellant on the day of the homicide had gone to Burlington, and there, drinking much liquor and trying to buy the tincture of cantharides, he acted and talked strangely, and, returning homeward, cut the boy's throat without any imaginable motive, unless he killed him to conceal a meditated crime on another. But there is now no sufficient clue in the evidence to allow the imputation of such a horrible motive. Proof that he was drunk was pertinent, in this state of case, as a circumstance helping to account for an act otherwise mysteriously inexplicable; and the jury had a right to weigh that fact, and give it its proper effect on the question of motive.
If the jury, on all the facts, had believed that when he killed the boy the appellant had no actual motive; and also that without knowing or having from experience cause to apprehend that what he drank that day might instantly produce delirium, or so inflame the passions or unhinge the mind as to jeopard human life, which would have been in no danger from his hand had he been perfectly sober and self-possessed; and also that he drank the intoxicating liquor merely for sensual gratification or exhilaration, and not for stimulating some meditated crime; then they might, and perhaps ought to, have found that there...
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Fields v. Com.
...62 Ky. 224, 1 Duvall 224, 227 (1864); Golliher v. Commonwealth, Ky., 63 Ky. 163, 2 Duvall 163, 165 (1865); Blimm v. Commonwealth, 70 Ky. 320, 7 Bush 320, 325 (1870); Shannahan v. Commonwealth, 71 Ky. 463, 8 Bush 463, 470-71 (1871); Rogers v. Commonwealth, Ky., 96 Ky. 24, 27 S.W. 813, 814 (1......