Ex parte Mote
| Citation | 275 S.W.2d 48 |
| Parties | Ex parte James MOTE. |
| Decision Date | 28 January 1955 |
| Court | United States State Supreme Court — District of Kentucky |
Thomas W. Hardesty, Newport, for appellant.
J. D. Buckman, Jr., Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., Wm. J. Wise, Commonwealth's Atty., Newport, for appellee.
This appeal is from a judgment of the Campbell Circuit Court sustaining a demurrer to and dismission the petition of James Mote for a writ of habeas corpus.
Appellant, James Mote, and three other persons were indicted and tried jointly in the Campbell Circuit Court for the crime of keepng a house of ill-fame. All four were convicted and were given the maximum penalty, a fine of $200 and imprisonment in the county jail for one year. Their motion for an appeal was denied by this court and the judgment affirmed in Downard v. Com., Ky., 265 S.W.2d 454.
In the action now before us Mote has appealed pursuant to the provisions of Sec. 429-1 of the Criminal Code of Practice, seeking a writ of habeas corpus. He contends the judgment under which he is being confined in jail is void because: (1) the testimony of the state policeman who conducted the investigation which led to his arrest is inadmissible; (2) the jury's verdict is defective; (3) the circuit court did not have jurisdiction to try him.
Two of his contentions (1 and 3) were before us in the first appeal in Downard v. Com., Ky., 265 S.W.2d 454, and decided adversely to Mote. The Commonwealth correctly argues that the decision in the Downard case is res judicata as to these two contentions. Res judicata is applicable to judgments in criminal prosecutions and subject to the same limitations as apply in civil cases. State v. Humphrey, 357 Mo. 824, 210 S.W.2d 1002; Ex parte Lewis, 152 Kan. 193, 102 P.2d 981; State v. Barton, 5 Wash.2d 234, 105 P.2d 63.
The argument that the judgment is void because of an alleged defective verdict was raised for the first time in this proceeding. The verdict reads:
'We, the jury, find the defendants, James Mote, Marshall Downard, Floyd Bowman and Jacqueline Hill, guilty as charged in instructions #1 and recommend full penalty of one (1) year in jail and the fine of $200.00 dollars.'
Appellant insists the verdict does not comply with Secs. 257 and 258 of the Criminal Code of Practice (requiring the jury to fix the punishment) because the word 'recommend' was used. The general rule is that a verdict is sufficient in form if it expresses the decision of the jury on the issue submitted so as to...
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Barnett v. Com.
...and is subject to the same limitations as apply in civil cases. Commonwealth v. Spivey, 243 Ky. 483, 48 S.W.2d 1076; Ex parte Mote, Ky., 275 S.W.2d 48; 1 Wharton's Criminal Law and Procedure, Section 174, page 406; Annotation, 147 A.L.R. 992. Briefly, the doctrine is that a fact or matter d......
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Smyth v. Bunch
...the verdict if it is clear and intelligible as to the punishment intended. 23 C. J. S., Criminal Law, § 1408(c), p. 1105; Ex Parte Mote (1955 Ky.), 275 S. W. 2d 48 (habeas corpus); Smith v. State, 157 Tex. Cr. R. 399, 248 S. W. 2d 937 (direct appeal); Sillemon v. State, 160 Tex. Cr. R. 350,......
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