Dodd v. Com.
| Decision Date | 20 February 1953 |
| Citation | 255 S.W.2d 464 |
| Parties | DODD v. COMMONWEALTH. |
| Court | United States State Supreme Court — District of Kentucky |
George R. Pope, Harlan, and Carlos B. Pope, Barboursville, for appellant.
J. D. Buckman, Jr., Atty. Gen., and John B. Browning, Asst. Atty. Gen., for appellee.
WADDILL, Commissioner.
The appellant, Mrs. Jess (Clara) Dodd, was convicted of voluntary manslaughter and sentenced to the state reformatory for women for a term of 21 years.
On this appeal she urges four grounds for a reversal of her conviction: (1) abuse of discretion in denying her motion for a continuance; (2) insufficient evidence to support the conviction; (3) error in limiting the effect of certain testimony; and (4) erroneous instructions.
Upon the calling of the case for trial, counsel for appellant filed a motion for a continuance which was supported by affidavits containing statements to the effect that appellant was suffering from several physical ailments and was unable to stand trial on the day the case was set.
Apparently the court was of the opinion that appellant's motion was not made in good faith. A hearing was held by the court to determine the merits of appellant's motion. The court resolved the issue in favor of the Commonwealth. We have reviewed the evidence presented upon this hearing and find that the court was justified in denying appellant's motion. Appellant was present at the trial and testified and otherwise actively participated in her defense. No complaint is made that she was unable to consult with her attorney and prepare her case for trial; nor that any of her witnesses were absent. No claim is made that her constitutional rights were violated.
The granting of a continuance in a criminal case is within the trial court's sound discretion and that discretion will not be interfered with unless it has been abused. The trial judge had an opportunity to hear and observe the witnesses on the pre-trial proceeding; hence, his knowledge of the case and his acquaintance with the parties and their witnesses doubtlessly enabled him to know whether the motion was a mere subterfuge for delay. It would be injudicious for this Court to hold, under the evidence and circumstances appearing, that the court's refusal to grant the continuance was an abuse of discretion. Greene v. Commonwealth, 282 Ky. 364, 138 S.W.2d 996; Young v. Commonwealth, 271 Ky. 65, 111 S.W.2d 433; Ellison v. Commonwealth, 195 Ky. 370, 242 S.W. 368.
It is next urged that the evidence is insufficient to support the conviction. Appellant admits that she shot and killed her son-in-law, George Clark, on the night of April 2, 1952, but attempts to justify her act by claiming that she shot Clark in her own defense and in the defense of her daughter. Appellant's testimony and that of her daughter, Mrs. Ailene Clark, supports her theory of the case. However, there appears other evidence given by disinterested witnesses that contradicts the testimony given in appellant's behalf, and which the jury had a right to consider in arriving at its verdict.
The Commonwealth introduced John Asbury, who resided about 90 feet from the residence of the deceased. He stated that on the night that George Clark was killed, and near 8:00 p. m., Ailene Clark, wife of the deceased, came to his home seeking sanctuary from her husband who she said was drunk and had been abusing her. Shortly thereafter, George Clark came to Asbury's house in search of his wife, and left when told she was not there. Clark had been drinking but was not misbehaving. Ailene had left by the back door. At about 11:00 p. m. the same night, Asbury stated he was sitting in his bedroom on the corner of the bed looking out a window from which he could see the front door of deceased's house and saw a taxicab stop at the Clark home and Ailene and her mother (the appellant) get out. Ailene walked upon the porch and forced the front door open and entered her home. Appellant followed her daughter upon the porch of the house but did not enter. George Clark came to the door and was talking with appellant. Clark was leaning against the doorframe of the front door with appellant standing a few feet in front of...
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Hurley v. Com.
...control and without previous malice.' He concedes that similar instructions were approved by this court in cases including Dodd v. Com., Ky., 255 S.W.2d 464 (1953) and he admits that we have held '* * * that an instruction on voluntary manslaughter is sufficient without any reference to int......
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Webb v. Com.
...will not disturb the court's order unless that discretion has been clearly abused. Lusk v. Com., 291 Ky. 339, 164 S.W.2d 389; Dodd v. Com., Ky., 255 S.W.2d 464; Knuckles v. Com., Ky., 261 S.W.2d This case was set for trial on February 9, 1959. It appears that appellant became ill with appen......
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Jones v. Com.
...on a lesser charge. It was not error for the trial court to omit a definition of 'provocation reasonably calculated,' Dodd v. Commonwealth, Ky., 255 S.W.2d 464, 466. But the appellant argues that the instruction given should have been extended to cover defense of home and family. An instruc......