Breeding v. Commonwealth

• Decision Date: 14 January 1921
• Citation: 190 Ky. 207,227 S.W. 151
• Parties: BREEDING v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

227 S.W. 151

190 Ky. 207

BREEDING v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 14, 1921

Appeal from Circuit Court, Letcher County.

George W. Breeding was convicted of detaining a woman against her will, and he appeals. Reversed.

D. D Fields & Day, of Whitesburg, for appellant.

Chas I. Dawson, Atty. Gen., and Chas. W. Logan, Asst. Atty. Gen for the Commonwealth.

QUIN J.

Appellant was indicted by a Letcher county grand jury August 16, 1918 for the crime of incest, and was admitted to bail in the sum of $3,000. The case was continued on the docket from time to time until April 16, 1920, on which date another indictment was returned against appellant, charging him with the offense of detaining a woman against her will. It is recited in the last indictment that it is in lieu of the one found in August, 1918, and is a continuation of the charges contained in the earlier indictment.

When the second indictment was returned, appellant was in court with his witnesses, prepared to try the case under the first indictment, and it was sought forthwith to compel him to enter into a trial of the charges that day preferred against him. He filed an affidavit seeking a continuance of the trial on several grounds, among others that he was not prepared for trial, as he had no intimation of any such charges being filed against him; that the finding of the indictment was the result of a conspiracy on the part of his children to get rid of him, and, if granted time to secure witnesses, he could disprove said charges. It is admitted appellant was forced into a trial under the second indictment on the day it was filed.

The commonwealth's attorney was not required to admit the truth of the statements in the affidavit for continuance, but was allowed to contradict the statements in said affidavit and to cross-examine appellant in regard to same. In permitting this procedure the court was evidently under the impression that the act of March 22, 1920 (Laws 1920, c. 57), amending section 189 of the Criminal Code, was in effect, but that act did not become a law until 90 days after the adjournment of the General Assembly. Ky. Const. § 55. Subsection 2 of said section 189, repealed by the act of 1920, but in force when the trial was had, provides that subsection 1 (re-enacted by the 1920 act) should not apply to a motion for a continuance made at the same term at which the indictment was found.

In this subsection 1 it is provided the commonwealth is not compelled to admit the truth of the matter contained in an affidavit for a continuance as to what absent witnesses would prove, but only that said witnesses would testify as alleged in the affidavit. The commonwealth is also given the right to controvert the statements of such affidavit, and to impeach the absent witnesses the same as if personally present.

Appellant was found guilty, and sentenced to a term of four years in the penitentiary. His motion for a new trial having been overruled, he has prosecuted this appeal.

The commonwealth very frankly and properly admits appellant has not had a fair trial. In section 185 of the Criminal Code it is provided:

"If the defendant be in custody, or on bail, when the indictment is found or be summoned or arrested three days before the time fixed for the trial, the trial may take place at the same term of the court, at a time to be fixed by the court."

The italicized words were added by an act of 1910. On April 16 1920, appellant was not in custody nor on bail for the offense for which he was indicted on that date, nor had he been summoned or arrested on that charge three days before the trial. Unquestionably appellant was entitled to some time within which to prepare his defense and secure his witnesses, and time should have been granted him for this...