Cornwell v. Com.
| Decision Date | 11 April 1975 |
| Parties | Ronnie CORNWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Anthony M. Wilhoit, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, Joseph S. Freeland, Paducah, for appellant.
Ed W. Hancock, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
Appellant Ronnie Cornwell, on the 13th day of August, 1973, was indicted for the offense of armed assault with intent to rob, as is denounced by KRS 433.153. A jury trial on September 17, 1973, resulted in a hung jury. The court, thereupon, discharged the jury. The case again was tried to a jury on November 21, 1973, the again the jury failed to reach a verdict; whereupon, it was discharged. The case then came on for a third trial on February 13, 1974, at which time counsel for appellant moved the court to dismiss the indictment. This, the court declined to do. Appellant's counsel's motion that the trial of the action be continued by reason of the absence of a material witness was likewise overruled. Thereupon, the case continued to trial. After a lengthy trial, the jury returned a verdict finding appellant guilty and fixed his punishment at ten years in the penitentiary.
On this appeal, appellant complains of two errors, each of substantial consequence, that allegedly denied him a fair trial and violated his constitutional rights. First, Ronnie contends that his motion to dismiss should have been sustained because to force him into a third trial, as was done, violated his constitutional right of freedom from double jeopardy. In addition, he claims to have been prejudiced by the trial court's refusal to continue the trial by reason of the absence of a material witness.
Article 13 of the Bill of Rights of the Kentucky Constitution provides:
'Double jeopardy--Property not to be taken for public use without compensation.
--No person shall, for the same offense, be twice put in jeopardy of his life or limb, nor shall any man's property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.'
The Fifth Amendment to the Constitution of the United States provides:
'Criminal actions--Provisions concerning--Due process of law and just compensation clauses.--No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'
In Roberson's New Kentucky Criminal Law and Procedure, 2d Edition, at § 122, it is stated:
'* * * Thus, if the trial court had no jurisdiction of the offense; or if the statute creating the court is unconstitutional; or the term of court is being held at a time not authorized by law; * * * or the inability of the jury to agree upon a verdict after a reasonable time has been given them for deliveration; * * * in any or all of these cases the accused has not been placed in jeopardy, and he may again be put upon trial upon the same facts before charged against him. * * *' (Emphasis added)
In Volume 21 of American Jurisprudence 2d, under the title 'Criminal Law' and in § 204 thereof, we find the following:
'The consent or nonconsent of the defendant is not material so long as the court is judicially satisfied that an agreement cannot be reached.'
It has long been the law of this commonwealth that ...
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... ... 563 S.W.2d 792; U.S. v. Gunter (C.A.10 1976), 546 ... F.2d 861; Orvis v. State (1976), 237 Ga. 6, 226 ... S.E.2d 570; Cornwell v. Commonwealth (Ky.1975), 523 ... S.W.2d 224; Commonwealth v. Fleming (1975), 233 ... Pa.Super. 19, 334 A.2d 690; U.S. v. Corbitt ... ...
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Gray v. Com., No. 2004-SC-000457-MR.
...its discretion would justify disturbing its ruling to grant or deny a motion for continuance). More specifically, in Cornwell v. Commonwealth, 523 S.W.2d 224, 227 (Ky. 1975), we held that the refusal of a trial court to grant a continuance on account of an absent witness will not be disturb......
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...and seventeen months after motion therefor, defendant was still required to submit affidavit under RCr 9.04); Cornwell v. Commonwealth, 523 S.W.2d 224, 227-28 (Ky.1975) (defendant filed proper affidavit stating expected testimony of absent witness who had testified at two prior trials, but ......
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Hudson v. Commonwealth, No. 2005-SC-0120-MR (Ky. 10/19/2006)
...and seventeen months after motion therefor, defendant was still required to submit affidavit under RCr 9.04); Cornwell v. Commonwealth, 523 S.W.2d 224, 227-28 (Ky. 1975) (defendant filed proper affidavit stating expected testimony of absent witness who had testified at two prior trials, but......