Carroll v. Commonwealth

• Decision Date: 11 May 1915
• Citation: 175 S.W. 1043,164 Ky. 599
• Parties: CARROLL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

175 S.W. 1043

164 Ky. 599

CARROLL v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 11, 1915

Appeal from Circuit Court, Whitley County.

Garfield Carroll was convicted of crime, and he appeals. Reversed and remanded.

B. B Snyder and Henry C. Gillis, both of Williamsburg, for appellant.

James Garnett, Atty. Gen., for the Commonwealth.

CLAY C.

Section 1221 of the Kentucky Statutes (1915) provides:

"Arresting Imprisoning or Transporting Another--Aiding and Abetting. If any person or persons shall arrest or imprison another or shall transport him, against his will, beyond the bounds of this commonwealth, otherwise than according to law, or cause, or in any manner counsel, aid or abet in such arrest, imprisonment, or transportation, the person or persons so offending shall, on conviction thereof, be deemed guilty of felony, and shall be confined in the penitentiary not less than one nor more than twenty years."

Garfield Carroll was convicted under the above statute and given an indeterminate sentence in the penitentiary of from one to twenty years. He appeals.

The indictment is as follows:

"The grand jury of Whitley county, in the name and by the authority of the commonwealth of Kentucky, accuse Garfield Carroll of the crime of arresting and detaining another against his will, otherwise than according to law, committed in manner and form as follows, viz.: The said Garfield Carroll on the 5th day of June, 1914, before the finding of this indictment and in the county and state aforesaid, did unlawfully, willfully and feloniously arrest and detain Luther Neal, against his will, otherwise than according to law, against the peace and dignity of the commonwealth of Kentucky."

Briefly stated, the facts are these: At the time of the alleged arrest a street carnival was being conducted just outside of the corporate limits of the city of Corbin. Garfield Carroll was employed by the manager of the carnival company to assist in keeping order on the grounds. About midnight some shots were fired on the grounds. According to the evidence for the commonwealth, Luther Neal and Ed McHargue were leaving the grounds. Defendant Garfield Carroll ran up and stopped them. Defendant held them for about five minutes. Defendant put his hands on them and searched both of them. Defendant claimed to be a deputy sheriff. Neal, who gave the above testimony, says that he had had a drink, but was not drunk. Ed McHargue was drunk. On cross-examination he admitted telling defendant's counsel that defendant had not arrested him, but claimed that he did not say that defendant had not touched him. At the time defendant came towards witness, Boggs, the policeman, was also coming. Boggs says:

That defendant took told of McHargue. Defendant said, "I am an officer and will do my duty." Didn't see defendant have hold of Neal.

The sheriff testified that defendant had not been appointed a deputy. Other deputies were sent to the carnival grounds to keep order. The defendant testified that he never had his hands on Neal or McHargue, nor did he search them. He had heard the pistol shots and approached McHargue and Neal. Boggs searched McHargue, but neither one of them searched Neal. Curt Jones, a deputy sheriff, appointed defendant, and defendant believed that he had a right to act. The manager of the carnival employed him to keep order. Neal stated in defendant's presence that defendant had not touched him.

Besides instructions defining the words "willful and willfully" and "felonious and feloniously" the trial court gave the following instructions:

"(1) If you believe from the evidence, beyond a reasonable doubt, that the defendant, Garfield Carroll, in Whitley county and before the finding of the indictment in this case, unlawfully, willfully, and feloniously arrested or imprisoned Luther Neal, by taking or detaining him against his will, at the time claiming to be an officer, and at a time when he was not a peace officer with authority and right to make arrests, either as sheriff or marshal, then you will find the defendant, Garfield Carroll, guilty, as charged in the indictment, of 'arresting another.'

(2) If upon the whole case you have a reasonable doubt from the evidence of the defendant having been proven guilty, then you should find him not guilty."

Motion has been made to dismiss the appeal on the ground that the transcript of the record was not filed within 60 days from the time the judgment was rendered. It appears from the proceedings that the trial took place early in October. Motion and grounds for a new trial were then filed, but were not overruled until October 23d. On October 24th judgment was rendered sentencing the defendant. Neither this order nor the order overruling the motion for new trial was signed by the trial judge until December 18, 1914, which occurred during the next term. At that time the court entered an order reciting the facts, and stating that the order overruling the motion for new trial should be treated and considered for all purposes as having been entered and having become effective on December 18th. At the same time the defendant was given until the third day of the next regular February term to prepare and file a bill of exceptions. On December 22d defendant filed with the clerk of this court a copy of the judgment and asked that the time for filing the transcript of the record and of the evidence be extended until February 22 1915. This motion was sustained and time given. The bill of exceptions was tendered, filed, and approved on the second day of the February term. The transcript was filed in this court on February 18th. The commonwealth insists that, although the judgment was not signed until December 18th, the signature of the judge related back to the date the order was entered, and the order became effective from that date, and not from the date that it was signed. This being true, it is insisted that the transcript of the record was not filed within 60 days after the judgment, and that during that period defendant did not secure an extention of time. Hence it is argued that the transcript was not filed in time. In the recent case of Interstate Petroleum Co. v. Farris et al., 159 Ky. 820, 169 S.W. 535, it was held that inasmuch as an unsigned judgment was a nullity, and did not become effective until it was entered on the order book and signed by the judge, a judgment was rendered, not on the date it was spread on the order book, but on the date that it was signed by the presiding judge. Hence the court reached the conclusion that the time within which an appeal should be prosecuted should be counted from the date the judgment was signed. As the copy of the judgment in this case was filed with the clerk of this court within less than 60 days from the time the judgment was signed, and as during that period the defendant was given until February 22, 1915, to file the transcript, and as the transcript was filed within the time allowed, it follows that the appeal should not be dismissed. For the same reason there is no merit in the contention that the bill of...