Com. v. Reynolds
| Decision Date | 15 March 1963 |
| Citation | 365 S.W.2d 853 |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. Carlos REYNOLDS, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellant.
Robert L. Gullette, Nicholasville, for appellee.
A grand jury of Jessamine County returned separate indictments accusing Carlos Reynolds of the crime of uttering a forged check. At a trial held on the indictments the accused entered a plea of guilty to each one and thereupon the court found him guilty and entered an order fixing his punishment at two years' confinement in the penitentiary on each offense and thereafter, on motion, the court entered an order which reads in part:
'It is ordered and adjudged that the entering of judgment and the sentencing of the defendant are hereby postponed and the defendant is placed on probation under the supervisor of the Division of Probation and Parole for a period of three years subject to defendant's compliance with the following conditions * * *.'
About a year later Carlos Reynolds was indicted for the crime of maliciously cutting and stabbing another with intent to kill. Upon a trial in the same ocurt the defendant was asked on cross-examination if he had ever been convicted of a felony. Our problem here is whether such a question was proper under CR 43.07, which reads:
'A witness may be impeached by any party, without regard to which party produced him, by contradictory evidence, by showing that he had made statements different from his present testimony, or by evidence that his general reputation for untruthfulness renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony.'
It is argued that nothing short of a final judgment of conviction may be used as a basis for attacking the credibility of a witness and that since a final judgment had not been entered, no conviction had been had.
It has been held that the word 'convicted' (or 'conviction') is equivocal and its meaning may vary according to its use in a particular statute. DeVeau v. Braisted, 5 A.D.2d 603, 174 N.Y.S.2d 596. The opinion in Dial v. Commonwealth, 142 Ky. 32, 133 S.W. 976, recognized that the word admits of different interpretations and said it had a twofold meaning: One is the determination of the fact of guilt, as by the verdict of a jury or by confession. The other denotes the final judgment in a prosecution when it is employed in speaking of a state of infamy. The truth of those observations will be impressed upon anyone who peruses the thirty-eight pages in Words and Phrases, Vol. 9A, which are devoted to cases in which this word has been defined. The word generally means the ascertainment of defendant's guilt by some legal mode and an adjudication that the accused is guilty. This may be accomplished by a confession by the accused in open court, a plea of guilty or a verdict which ascertains and publishes the fact of guilt. We believe in the majority of those cases and in the majority of jurisdictions (although we have not counted noses), the word 'conviction' is not limited to a final judgment.
In this state we do not seem to have achieved unanimity of thought in each opinion so it is therefore required that we discuss a few of them in detail.
In Foure v. Commonwealth, 214 Ky. 620, 283 S.W. 958, where a witness had been convicted of a felony--but the case was then pending on appeal to this court--the court held:
The same conclusion was reached in Consolidation Coal Company v. Vanover, 166 Ky. 172, 179 S.W. 43; Stewart v. Commonwealth, 185 Ky. 34, 213 S.W. 185; Sullivan v. Commonwealth, 158 Ky. 536, 165 S.W. 696.
In Prewitt v. Wilson, 242 Ky. 231, 46 S.W.2d 90, an election contest case, where the votes of two persons had been challenged because the voters had been convicted of a felony and where it was shown that at the trial the jury had returned a verdict of guilty as charged in the indictment and punishment was fixed at one year in the state penitentiary, but where the record did not show that judgment had been entered on the verdict, it was held that under such circumstances the verdict should not be regarded as conviction because '[a] verdict is but the basis of a judgment which carries it into effect.'
It is hard to reconcile the foregoing cases with the late case of Winn v. Commonwealth, Ky., 303 S.W.2d 275, where it was held:
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Commonwealth v. Tigue, 2011–SC–000737–DG
...may be accomplished by ... a plea of guilty or a verdict which ascertains and publishes the fact of guilt.” (quoting Commonwealth v. Reynolds, 365 S.W.2d 853, 854 (Ky.1963) (brackets in original)). Because the denial of counsel caused by Tigue's counsel's refusal to assist him in trying to ......
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St. Clair v. Com., No. 1999-SC-0029-MR.
...of jurisdictions (although we have not counted noses) the word "conviction" is not limited to a final judgment. Commonwealth v. Reynolds, Ky., 365 S.W.2d 853, 854 (1963). See also Kentucky County Judge/Executive Association, 938 S.W.2d at 584 n. 1 ("Kentucky law recognizes the equivocal nat......
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Cook v. Com., No. 2002-SC-0486-MR.
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