Crenshaw v. Commonwealth
| Decision Date | 21 December 1928 |
| Citation | 12 S.W.2d 336,227 Ky. 223 |
| Parties | CRENSHAW et al. v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bullitt County.
C. E Crenshaw and others were convicted of murder, and they appeal. Affirmed.
C. P Bradbury and A. E. Funk, Jr., both of Shepherdsville, for appellants.
J. W Cammack, Atty. Gen., and J. M. Gilbert, Asst. Atty. Gen., for the Commonwealth.
On May 15, 1928, the judge of the Bullitt circuit court, Hon. Basil Richardson, by notice duly posted called a special term of that court to convene at Shepherdsville, the county seat of the county, on the 28th day of May following the date of the call, and to continue for all juridical days intervening between that date until and including the 9th day of June, 1928. The reason for calling the special term, as set out in the call, was the existence of an emergency, and the condition of the criminal docket in that county, and which emergency was the recent perpetration in the county of the crime for which appellants and the other defendants were indicted. The indictment accused those named therein (Clarence Crenshaw, Elmer Crenshaw, John H. Bolton, Frank Hodge, Shelby Hodge, Less Hodge, Golden Hodge, Jim Harris, and Frank Kinder) of committing the crime of murder by shooting and killing Kate Browning, and which was done in Bullitt county and before the finding of the indictment. In the first count all of them were charged with the killing, and in following counts the murder was charged to have been committed by one or more of them, or by a person or persons to the grand jury unknown, and that the others were present, aiding, assisting, and abetting those who actually perpetrated it.
Defendants were tried at the same special term, and all of them were convicted and punished by confinement in the penitentiary for and during their natural lives. On the hearing of their motion for a new trial, the court sustained it as to the three defendants Less Hodge, Golden Hodge, and Jim Harris, but overruled it as to the other six against whom judgment was pronounced in accordance with the verdict, and to reverse it they prosecute this appeal.
The record is large. The briefs are many, and the motion for a new trial contains 29 grounds therefor, some of which are repetitions of others, but because many of them are immaterial, or, if they contained error, it is nonprejudicial, we will not attempt to discuss all of them seriatim, but will content ourselves with a discussion and determination of only those that we deem of sufficient merit to call for consideration.
It is first urged as a ground for reversal that the court was without authority to call the special term at which defendants were indicted, tried and convicted, in the manner it did, i. e., by notice posted at the courthouse door as permitted by the first part of section 971-13 of the 1928 Supplement of Carroll's Kentucky Statutes, and which was an act of the 1926 session of the Legislature, and being chapter 31, page 128, of the Acts for that year. The argument in support of this ground is that at the date of the call for the special term a regular term of court was in session in Larue county in the same judicial district, and that upon the date the special term convened under that call, and throughout the days of its sitting as designated in the call, and during which defendants were indicted and tried, a regular term of the Nelson circuit court was provided for by law, and that under section 971-13, supra, of the statute a special term of court called to be held "while a court is or may be in session in the same or some other county in the district" must be called by an order of court entered at the last regular term for the county in which it is called, and that no such term can legally be called by posting of notices. This ground was raised by a special demurrer to the jurisdiction of the court, and by other various motions made after the indictment was returned.
The determination of it calls for a brief history of the law with reference to the calling of special terms of circuit courts. In 1893 the Legislature enacted section 964 as now contained in the 1922 edition of Carroll's Kentucky Statutes, except the amendment that was added thereto by an act passed in 1894 (chapter 94). As first enacted the statute read:
The 1894 amendment only provided for grand juries at any special term of court, if the judge thereof was of the opinion that such emergency existed as to require it. As so amended the section remained until 1906, and at that session, by chapter 23, page 249, Acts of that year, section 964 was amended by adding thereto section 964a1, but the amendatory statute as it appears in the 1906 Acts consisted of only one additional section, which was designated as section 964a and which itself was divided into sections 1 and 2, but the publishers of the Kentucky Statutes, in printing section 964 as amended by the 1906 act, duplicated the original amended section, and designated the duplication as section 964a2, and they likewise duplicated the first section of that amendment and designated that duplication as section 964a3. So that all the statutory law with reference to the calling of special terms of court from and after the 1906 amendment was contained in sections 964 and 964a1 of the 1922 edition (and others since 1906) of Carroll's Kentucky Statutes. Section 964a4 of such editions was section 2 of the 1906 act. The law relating to the calling of special terms of court remained in that condition until the 1926 act was passed, and all of the prior acts upon the subject, in so far as they related to the power and authority of the presiding judge to call a special circuit court term, were consolidated in section 13 of the latter act and which is now section 971-13, supra. That consolidated section made some slight changes in the 1906 act, one of which was that a grand jury might be impaneled for a special term called under that amendment.
The constitutionality of the 1906 amendment was before this court in the case of L. & N. R. R. Co. v. Herndon's Adm'r, 126 Ky. 589, 104 S.W. 732, 31 Ky. Law Rep. 1059. Paducah Land, Coal & Iron Co. v. Cochran,
37 S.W. 67, 18 Ky. Law Rep. 465, was cited in support of that statement. In the latter case a special judge who had been appointed to try the case sat and heard it as such special judge, and at a special term held at the same time the regular term was going on in the same county, and the opinion in effect held that the original section 964, which, as we have said, was enacted in 1893, contained nothing militating against that, but, on the contrary, authorized it. That opinion was rendered prior to the 1906 amendment, and the learned judge who wrote the Herndon opinion was correct in saying that the amendment was unnecessary to authorize the holding of a special term of circuit court at and during the same time another regular term in the district was being held, or might be held.
Moreover, in the case of Penman v. Commonwealth, 141 Ky. 660, 133 S.W. 540, defendant was indicted and tried at a special term of the Lincoln circuit court called to convene September 28, 1910, at which time, and on the date of the call (September 15), a regular term of circuit court for that district was being held in Danville, Boyle county, both counties being in the same circuit court judicial district. Defendant made appropriate objections to the validity of the special term at which he was indicted and tried. The 1906 amendment to section 964 of the then Kentucky Statutes was in force and constituted a part of it. But, notwithstanding the fact that the special term was called by posting of notices by the circuit judge, defendant's conviction was upheld and his objections to the validity of that special term were overruled. It is true that the objection now under consideration was not expressly referred to in that opinion, but the member of the court who wrote it (Judge Carroll) was most painstaking and ever particularly alert to protect the legal rights of all those who were so unfortunate as to become criminally accused. Nevertheless, quoting from the syllabus, also prepared by him, he said: "The circuit judge may call a special term whenever in his judgment the business requires it; and at such special term he may impanel a grand jury and try at such term persons who are indicted thereat."
Independently of the foregoing, which we think sufficiently answers this objection, if counsel for defendants are correct in their contention, then the provisions in the statute for calling special terms in cases of emergency would be of little avail, because it would necessarily be confined to an emergency that arose during a regular term of court in the county in which the special term was called. No better illustration...
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