Dilger v. Commonwealth

• Decision Date: 09 May 1889
• Citation: 11 S.W. 651,88 Ky. 550
• Parties: DILGER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

11 S.W. 651

88 Ky. 550

DILGER v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 9, 1889

Appeal from the circuit court, Jefferson county; W. L. JACKSON Judge.

"To be officially reported."

Robbins & Weisen, for appellant.

P. W Hardin and Frank Parsons, for appellee.

HOLT J.

The appellant, Charles Dilger, is under sentence of death. His counsel urge that the verdict is not the result of a fair trial, but of popular clamor. In a case like this one, where apparently at least, affluent circumstances and influential friends are lacking, those who administer the law should be specially alert, and stand like a wall between the passion of the hour and the object of it, insuring to him, however humble, an impartial trial. Without this barrier no citizen is safe. Remove it, and the liberty, or, what is more, the life, of every individual is in damger. If the accused be given but the mere form of a trial, and made the victim of excited public sentiment, or maddened popular feeling, then a degrading judicial farce is enacted, and an example furnished likely to be far-reaching for evil. Moved by these considerations, we have given this case as careful an examination as lies within our power. Upon the night of August 15, 1888, and at about the midnight hour, the appellant was beating his mistress, Mary Burns, in an upstairs room occupied by them in the city of Louisville. Her cries attracted the attention of Joseph Rosenberg and James W. Jones, who were the two policemen upon that beat, and they at once hastened to the house. They located the room where the offense was being committed by the noise; but just before they entered it the appellant stopped beating her, the cries ceased, and they knew of it therefore only by hearing, and not by sight. The accused declined to be arrested by them claiming that he had done nothing in their presence, and that therefore they could not arrest him without a warrant, since section 36 of our Criminal Code provides: "A peace officer may make an arrest (1) in obedience to a warrant of arrest delivered to him; (2) without a warrant, when a public offense is committed in his presence, or when he has reasonable grounds for believing that the person arrested has committed a felony." The appellant testifies that upon this mere objection to arrest being made by him, and without any action upon his part, they commenced beating him with their "billies." His defense, therefore, was that the attempted arrest was unlawful; and, if not, that unnecessary force was unlawful and that he acted in self-defense. His testimony is to some extent sustained by other evidence; but in our opinion it is overborne by other positive and circumstantial testimony, showing clearly that upon their offering to arrest him he at once began to use his deadly bowie knife, driving it into the brain of the one and the heart of the other, and killing them both almost instantly. It is plain from the verdict that the jury accepted this latter view of the bloody transaction. The officers were dressed in their police uniform, and well known to the appellant to be policemen. Unquestionably they had a right to make the arrest. While the offense of beating the woman was not committed in their sight, yet it was within their hearing, and when they were so near that they could not be mistaken as to the offender. This was within their presence, as contemplated by the law. Moreover, the instructions given to the jury told them that the offense for which the arrest was attempted must have been committed in the presence of the officers.

This conviction is for the killing of the officer Jones. An indictment was found September 17, 1888. The next day the appellant pleaded to it. It was then set for trial on September 25, 1888. Upon the lastnamed day the accused had it continued until October 11, 1888. October 10, 1888, an order was made upon the motion of the attorney for the state, dismissing the indictment, and reciting that the case was resubmitted to the grand jury, and the defendant held in custody. This was done without the knowledge of the appellant or his attorney, and without any reasons therefor being entered of record. October 11, 1888, he moved the court to set aside this order. The motion was overruled. He complains of this action. The statute of April 9, 1873 provides "that hereafter, before the court shall permit any common wealth's attorney to dismiss any indictment, or enter a nolle prosequi in any case, such attorney shall file a statement in writing, setting forth the reasons for such dismissal or such failure to prosecute, which statement shall be signed by said commonwealth's attorney, and an order shall be made on the record-book of said court, and it shall remain with the papers of such prosecution as a part of the record." Gen. St. 185. It was enacted because of the improper dismissal of indictments in some of the courts, and is merely directory. This dismissal was not one within the meaning of the law. It relates to cases where, as the result of the dismissal, the defendant is discharged. This is plainly so. Here the case was resubmitted to the grand jury, the accused held in custody, and a new indictment soon returned. It was not a discontinuance of the prosecution. Moreover, we are unable to see how the appellant could have been prejudiced. The new indictment charged the same offense. No jeopardy had attached to the accused under the former one. He did not attempt to plead the order of dismissal in bar of a prosecution upon the second indictment. It operated merely as would an admission of defect in the first indictment, and a confession of demurrer to it.

Prior to the amendment of April 1, 1880, to the General Statutes as accused was entitled to a change of venue as a matter of right upon the filing of his verified petition, supported by the affidavits of two or more credible persons, not of kin to or counsel for him, and who were acquainted with the state of public opinion in the county objected to, stating that he could not obtain a fair trial...