Brown v. Hoblitzell

• Decision Date: 16 November 1956
• Citation: 307 S.W.2d 739
• Parties: James BROWN, Appellant, v. Bruce HOBLITZELL, Sheriff and Jailer of Jefferson County, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 739

307 S.W.2d 739

James BROWN, Appellant, v. Bruce HOBLITZELL, Sheriff and Jailer of Jefferson County, Appellee.

Court of Appeals of Kentucky.

Nov. 16, 1956.

As Modified and Extended on Denial of Rehearing Dec. 13, 1957.

Robert W. Zollinger, Louisville, for appellant.

Jo M. Ferguson, Atty. Gen., Robert F. Matthews, Jr., Asst. Atty. Gen., Frankfort, Ky., A. Scott Hamilton, Commonwealth Atty. of Jefferson County, Charles W. Dobbins, County Atty. of Jefferson County, Oldham Clarke, Special Attorney for Jefferson County, Louisville, for appellee.

Louis Lusky, Louisville, for Civil Liberties Union, amicus curiae.

MONTGOMERY, Judge.

This is an appeal from a judgment denying the appellant, James Brown, release from the Jefferson County jail on a writ of habeas corpus.

The response was that appellant was in appellee's custody, as jailer, under five commitments from the Jefferson Quarterly Court, dated November 19, 1953. No question is raised as to the form of the commitments or whether they were issued on the judgments described later.

It is urged that the judgments are void because: (1) they were rendered by a person who had no legal judicial authority or power; and (2) the petitioner was convicted on five charges but was tried on only one; he was deprived of the right of trial by jury; and in the absence of the jury trial, he should have been sentenced only for the minimum term or to pay the minimum fine instead of having the maximum penalty imposed in each case.

The second basis for attack on the judgments will be considered first.

On October 25, 1953, appellant, while operating a motor vehicle on U. S. 42 near Louisville, was involved in an auto collision in which four women were killed. Other persons were injured. Appellant was arrested at the scene of the accident.

Eight charges were placed against appellant in the Jefferson Quarterly Court. These were: 70806 1/2, manslaughter; 70806 and 7081 3/4, KRS 189.250 (drunken driving); 70813, public drunkenness; 70813 1/2, 70813 3/4, 70814, and 70814 1/2, KRS 435.025 (negligent homicide by auto). Cases 70806 and 70806 1/2 were continued on October 26, 1953, to November 2, 1953. On the following day, the other six charges were continued to November 2, 1953.

The eight cases were continued again to November 19, 1953. Six subpoenas for six witnesses were issued on November 2, 1953, in 70813, charging public drunkenness, for their appearance on November 19, 1953. A list of the witnesses, including the two police officers making the arrest, is enclosed as a part of the record in that case.

A trial was had on November 19, 1953, without objection or request for continuance. Benjamin Shobe appeared as attorney for the defendant. The parties stipulated in the beginning 'that Rosa Haury lost her life as a result of an accident involved in this case'. Witnesses testified that four automobiles were involved in the collision. The appellant was very drunk and his gross negligence in driving one of the cars had caused the accident. In addition to Rosa Haury, Anna Pfisterer, Elizabeth Pfisterer, and Mrs. Anthony Miller were killed; others were injured. At the conclusion of the introduction of evidence by the Commonwealth, the attorney representing appellant stated, 'The defendant will not testify at this time.' Oral argument was made by counsel for each side.

Then, the trial commissioner expressed appreciation of Mr. Shobe, an attorney, for representing the defendant 'on the spur of the moment', and stated his opinion that Brown was drunk while driving his automobile and had caused the accident. Referring to the statute on negligent homicide by means of an automobile, the commissioner continued, 'I am sure that the defendant is going to appeal my decision, but I am going to give him a year in jail on each one and a $500 fine on drunken driving. * * * One year on each case, and $500 fine for the drunken driving.'

This order was then entered:

'70813 1/2 Commonwealth vs. James Brown Viol. 435.025; 70813 3/4 Commonwealth vs. James Brown Viol. 435.025; 70814 Commonwealth vs. James Brown Viol. 435.025; 70814 1/2 Commonwealth vs. James Brown Viol. 435.025.

'Came the defendant in person, the Court having heard the evidence, and being sufficiently advised, the defendant being adjudged guilty, it is ordered by the Court that the defendant is to be confined to the Jefferson County Jail for a period of one (1) year on each of the above actions, making a total of four (4) years in jail to be served.'

The public drunkenness charge (70813) and drunken driving charge (70806) were consolidated with the other drunken driving charge (70814 3/4). Appellant, 'upon evidence heard', was adjudged guilty and fined $500 and $5.50 court costs. The manslaughter charge was 'filed away'. It does not appear when this last order was made with reference to the time of the trial.

The commitments were issued on these judgments. The order book containing the entries of November 19, 1953, is signed:

'Thomas H. Young

Special Trial Commissioner

'M. O. Henchey

Trial Commissioner

'Boman L. Shamburger

Judge'

Appellant made no objection whatever to the trial commissioner's conclusions that he was guilty of five charges or to the entering of five judgments thereon. He did not appeal.

In the habeas corpus proceeding, the lower court concluded that the 'petitioner had a fair and impartial trial', the facts justified his conviction, and there was no arbitrary action on the part of the quarterly court commissioner, who was a de facto judge; hence, the judgments were not void.

An attack on a judgment by petition for writ of habeas corpus is a collateral one. The petitioner must establish by the record of his trial that the judgment of confinement is void. Brown v. Commonwealth, Ky., 243 S.W.2d 885; Owen v. Commonwealth, Ky., 280 S.W.2d 524.

The Jefferson Quarterly Court had jurisdiction of the person and of the offenses charged. The appellant made no objection to the proceeding. He made no demand for a jury trial. Failure to demand a jury trial waives the right to it. Garner v. Shouse, 292 Ky. 798, 168 S.W.2d 42; Williams v. Pierson, 301 Ky. 302, 191 S.W.2d 574. It is error for the court to impose more than the minimum penalty on a plea of guilty without the defendant having had the advice of counsel. Criminal Code Section 258; KRS 431.130; Parsley v. Commonwealth, Ky., 272 S.W.2d 326. There is no such error here. The appellant was acting with advice of counsel. Lee v. Buchanan, Ky., 264 S.W.2d 661. While the record in this case is silent as to whether the appellant pleaded 'not guilty', that plea is implicit in the fact that evidence was heard on the question of his guilt. Meece v. Commonwealth, 78 Ky. 586, 1 Ky.Law Rep. 337; Dabney v. Commonwealth, 226 Ky. 119, 10 S.W.2d 612. Error in considerating several charges or warrants for trial is not reviewable on habeas corpus. 39 C.J.S., Habeas Corpus, § 21, p. 469, note (1).

Appellant contends that the proceeding was an examining trial on the felony charge, manslaughter; and that no sentence could be imposed. The caption of the stenographer's transcript of the trial had 'No. 70814' typed underneath 'Jefferson Quarterly Court'. At the habeas corpus hearing, appellant's counsel identified the copy of the transcript of evidence at the trial in the following words: 'It's been borrowed from Temple Lewis, the insurance adjuster who settled this case by paying all of the damages which the insuror (sic), Elizabeth Pfeister (sic) was liable for.' This statement, together with the stipulation as to the death of Rosa Haury and the designation of the transcript by the number of the negligent homicide case in which her death was involved, serve to indicate that the adjuster had procured the transcript for use in the investigation of a claim against the estate of Elizabeth Pfisterer, also killed in the accident.

There is no merit in the contention that the proceeding was an examining trial on the charge of manslaughter rather than a final trial on the five charges in which judgments were rendered. From the record before us, it is apparent that the appointed counsel was very capable and performed his duty well, as was pointed out at the conclusion of the trial by the trial commissioner. In his brief, appellant's present counsel admits the competency of the attorney. The record shows that Mr. Shobe cross-examined the prosecution witnesses with vigor and skill. He argued the case at the close of the testimony. When the determination of the guilt and punishment was made, it is hard to believe that such an able defense counsel would have failed to make some objection or demand some explanation if he had gone through the trial thinking it was an examining trial instead of a final trial on the merits. The failure to object under such circumstances is very persuasive of the view that it was not an examining trial. The continuances in the eight cases, their final disposition on the same day, and the issuance of process for witnesses in the public drunkenness case are also inconsistent with the view that the hearing was an examining trial on the felony charge. While the record is silent as to any agreement to hear the five charges together, all of the attendant circumstances indicate such an agreement. The statement of the trial commissioner that he expected the decision to be appealed is uncontradicted and clearly indicates that he considered the hearing to be a final trial rather than an examining trial.

The appellant had five serious charges against him. The evidence introduced at the hearing indicates that four felony charges might well have been placed against him. From the record, it is apparent that he was fortunate to have escaped more severe punishment. The conclusions of the lower court that appellant 'had a fair and impartial trial' and that the facts justified his convictions are sound.

The remaining contention of appellant is that he was convicted when...