Brooks v. Commonwealth

• Decision Date: 28 November 1896
• Citation: 100 Ky. 194
• Parties: Brooks v. Commonwealth.
• Court: Kentucky Court of Appeals

100 Ky. 194

Brooks v. Commonwealth.

Court of Appeals of Kentucky.

November 28, 1896.

APPEAL FROM MORGAN CIRCUIT COURT.

HOBBS & SCOTT FOR APPELLANT.

W. W. McGUIRE ON SAME SIDE.

W. S. TAYLOR FOR APPELLEE.

JUDGE LANDES DELIVERED THE OPINION OF THE COURT:

The appellant was indicted by the grand jury of Morgan county for the murder of Gus McKenzie, and upon trial was found and adjudged guilty as charged, and is now under sentence of death therefor. A motion for a new trial having been made and overruled, this appeal is prosecuted from that judgment.

The killing occurred in the town of West Liberty on the first day of the June term, 1896, of the Morgan Circuit Court, about one hour before sunset. The appellant was promptly arrested and imprisoned, and by about 10 o'clock a. m. of the next day the indictment was returned by the grand jury. On the same day the court ordered the case to be set down for trial on the fourth day of the term, and, the appellant being unable to employ counsel, the court appointed two of the attorneys of the court to defend him.

When the case was called for trial on the fourth day of the term the appellant, who had been confined in jail ever since the killing, made affidavit and by his counsel moved for a continuance of the case until the next term of the court to enable him to prepare for trial, without having had any witnesses summoned to testify in his behalf.

While no witnesses were named in this affidavit by whom the appellant expected to be able to prove any material facts in his defense, it was stated in substance that the killing was done while both he and the deceased were under the influence of strong drink, and while they were engaged in a dispute and in the midst of great excitement, which was still prevailing in the county, and that he shot the deceased in self-defense; but so great was the excitement surrounding him, and such was his condition, that at the time he did not know who was present or by whom he could prove the facts to sustain his plea of self-defense; that he had not had time sufficient to prepare for his defense, and that, ever since the killing, he had been in such a condition of nervous excitement and prostration that he had been unable to tell his attorneys anything about his case.

Both of his attorneys made statements in support of the motion for a continuance, showing that they had neither sufficient time nor opportunity to make suitable preparation for the defense. One of them, who had been for many years in active practice both in criminal and civil cases, stated that the appellant was not able, on account of his nervous condition, to tell him who was present at the killing, and that, "on account of the state of public opinion and the additional facts, neither he nor his associate counsel knew the facts of the killing, and the defendant can not tell at this time who does know. He thinks it impossible to obtain a fair and impartial trial for the defendant at this term of the court." He further stated that he believed that "by the next term of the court the defendant can have the facts of his case understood," and that "a trial of this case at this term of the court is to him a leap in the dark, and that he can not do the defendant justice in his defense if forced to try at the present term."

The motion for a continuance was overruled by the court and, exceptions having been properly taken, this is here complained of as error prejudicial to the substantial rights of the appellant.

It can hardly be said that the facts upon which the motion for a continuance in this case was based, as set forth in the affidavit of the appellant and the statements of his counsel, were technically legal grounds for a continuance. At the same time they were of such a character as would have warranted action by the lower court upon the motion favorable to the appellant in the exercise of a sound discretion conferred by the law.

Section 185 of the Criminal Code provides that if the defendant is in custody or on bail when the indictment is found "the trial may take place at the same term of the court, at a time to be fixed by the court."

In every prosecution before a trial can be lawfully had, the defendant must be "before the court" in some way or by some process, usually before the commencement of the term of court at which it is proposed the trial shall be had (Criminal Code, section 187); but the condition provided for by the section quoted is where a defendant is "before the court" on some charge before or at the time "the indictment is found." And the object of these provisions is to secure as speedy a trial in all cases as may be consistent with the allowance of reasonable time for preparation, both for the Commonwealth and the accused.

In this case the crime with which the accused was charged was committed after the commencement of the term of the court at which the indictment was found and he was indicted while in custody, and, therefore, "before the court" on the charge, but without any previous inquisition.

There is nothing in the record to show that the learned judge of ...