Fanelli v. Com.
| Decision Date | 03 March 1967 |
| Citation | 418 S.W.2d 740 |
| Parties | R. J. FANELLI, Herbert C. Howard, and Joe T. Moore, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Daniel B. Boone, William S. Bowman, S. J. Stallings, R. D. McAfee, Richard D. Remmers, Louisville, for appellants.
Edwin A. Schroering, Jr., Louisville, Robert Matthews, Atty. Gen., Lloyd R. Cress, Robert D. Preston, Asst. Attys. Gen., Frankfort, for appellee.
Appellants were tried jointly under six indictments, two against each appellant. The two indictments against Herbert C. Howard, an attorney, contained nine counts each; one indictment was drawn under KRS 61.190, providing a penalty for '(a)ny public officer who shall receive, directly or indirectly, any interest, profits or perquisites arising from the use or loan of public funds in his hands, or to be raised through his agency,' and the other for accepting a bribe in violation of KRS 432.350(2). Appellants Fanelli and Moore were both charged in two indictments containing ten counts each under the two statutes referred to above.
The jury trial resulted in the conviction of the three appellants on all counts. Appellant Howard was assessed fines of $900 on each count under one of the indictments, making a total of $9,000, and given ten years in prison under the other indictment, one-half of which was ordered to run concurrently with the other half. Appellants Fanelli and Moore were fined $10,000 each and given ten years' imprisonment in the penitentiary.
The indictments did not charge a conspiracy, but the evidence showed each appellant accepted checks for the following identical amounts, to the penny, on the dates indicated opposite them:
$ 416.67 May 15, 1961
583.33 May 23, 1961
150.00 June 23, 1961
166.66 July 18, 1961
175.83 July 20, 1961
200.00 July 22, 1961
233.33 July 28, 1961
300.00 August 5, 1961
3000.00 September 21, 1961
3000.00 December 8, 1961
At the time of the acceptance of the above amounts, appellants composed the three-member Commission of the Middletown Water District.
Three separate briefs and a reply brief have been filed on behalf of appellants. Appellee has filed one brief in which it attempts to answer the numerous questions raised in appellants' briefs. We shall take up the questions presented in the order in which they are answered in appellee's brief.
Appellant Fanelli first argues that an admonition given by the court, with reference to the limited purpose for which the jury could consider the numerous checks introduced in evidence, was insufficient and its effectiveness destroyed by the concluding comment of the trial judge. Appellant Howard contends that the trial judge made numerous prejudicial comments during the trial that deprived him of a fair trial.
Approximately thirty canceled checks payable to appellants were introduced, to which objection was made by the appellants whose names did not appear on the particular check being introduced. The trial judge gave the following admonition:
It is concluded the admonition was sufficient. Furthermore, there was no objection to the admonition or motion to set aside the swearing of the jury and continue the case. We do not think the reference to objections was sufficient to faze the fair-minded intelligence which we must assume the jury possessed.
Four pages of appellant Howard's brief are devoted to the proposition that the trial court made other improper and prejudicial comments during the trial. Numerous instances are quoted, which we will not set out herein but simply say that they amount to the expression of some impatience on the part of the court. It is to be noted that the attorneys and their objections were numerous and perhaps persistent. It may at times be difficult under such circumstances for a trial judge to maintain patience and tolerance, but it is highly desirable that he do so, both to uphold the dignity of the court and to avoid the possibility jurors may be influenced by his comments. We repeat our observations in the preceding paragraph that there was no prejudice to appellants' substantial rights. RCr 9.26.
Appellants all join in questioning the propriety of the ruling of the trial court overruling their separate motions for separate trials. For many years the right to separate trial was absolute under the old Criminal Code Rules (section 237), but under RCr 9.16 the trial court is now given a discretion in ruling upon request for separate trials. See Smith v. Commonwealth Ky., 375 S.W.2d 819 (1964). The right to separate trial was not a common law right or one safeguarded by our Constitution. Koonze v. Commonwealth, Ky., 378 S.W.2d 804 (1964).
In Hoskins v. Commonwealth, Ky., 374 S.W.2d 839 [1964], this court stated the prevailing rule that the mere fact that evidence competent as to one defendant but incompetent as to the other may be introduced is not alone sufficient to establish such prejudice as to require the granting of separate trial. See also Underwood v. Commonwealth, Ky., 390 S.W.2d 635 (1965).
We find no evidence of antagonistic defenses tending to show an abuse of discretion by the trial court in overruling the motions for separate trials.
Appellants claim a violation of KRS 421.225 and section 11 of the Constitution was committed by the commonwealth's attorney when he made the following remarks: And at another point in the cross-examination of appellants' secretary:
It was held in Schweizer v. State of Tennessee, Tenn., 399 S.W.2d 743 (1966) that: 'Argument by Counsel for the State to the fact that the evidence of the State is uncontradicted is not improper as drawing the attention of the jury to the failure of the defendant to testify.' See also Anderson v. Commonwealth, Ky., 353 S.W.2d 381 (1961) certiorari denied 369 U.S. 829, 82 S.Ct. 847, 1 L.Ed.2d 795, certiorari granted 371 U.S. 886, 83 S.Ct. 192, 9 L.Ed.2d 120.
We cannot say that it is reasonably probable that the remarks of the commonwealth's attorney were calculated to call the attention of the jury to the defendants' failure to testify.
Only appellants Howard and Moore contend the evidence was insufficient to support the verdict.
There was evidence that appellants were the only members, of the Middletown Water Commission; that they received and endorsed the checks from Sanson, the contractor on Commission projects; that appellants did not charge any inspection fee on projects awarded to Sanson, but did charge eight percent on projects awarded to other contractors; that contracts awarded to Sanson received more prompt consideration than those of other contractors; that Sanson's projects received better water service than other projects; that some of Sanson's bids were missing from the minute book; that appellants received the amounts listed above; and that each defendant received from Sanson an amount equal to the amount received by every other commissioner. This last circumstantial evidence is the most potent and significant of all. Certainly it cannot be said that Sanson made any difference among the appellants; he treated them all alike.
We wonder what answer the computer would give to the question of the probability of three persons claiming to have rendered different services to a concern each receiving nine or ten checks bearing identical dates and amounts to the copper?
Appellant Howard alone maintains that error was committed by ...
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Martin v. Com., 2000-SC-1101-DG.
...its charter ... [or] all right to carry on any business in this State .... Ky. Const. § 150 (emphasis added). And in Fanelli v. Commonwealth, Ky., 418 S.W.2d 740 (1967), our predecessor Court upheld against a vagueness challenge the provision of KRS 61.190 that provides a penalty for "[a]ny......
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Soto v. Com., No. 2000-SC-0828-MR.
...authenticity, a document may be authenticated by a wide variety of means, including circumstantial evidence. See Fanelli v. Commonwealth, Ky., 418 S.W.2d 740, 744-45 (1967) (circumstantial evidence sufficient to authenticate checks allegedly signed by defendants, even absent testimony from ......
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Skimmerhorn v. Commonwealth, 1997-CA-000532-MR
...the onus was on Jones to show that he was not the person who was previously convicted."[57] Accord Fanelli v. Commonwealth, Ky., 418 S.W.2d 740, 744-745 (1967); Green v. Commonwealth, Ky., 413 S.W.2d 329, 331 (1967); and Marcum v. Commonwealth, Ky., 411 S.W.2d 462, 465 (1967).[58] Based upo......
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Polsgrove v. Com.
...by our Constitution. Smith v. Commonwealth, Ky., 375 S.W.2d 819; Koonze v. Commonwealth, Ky., 378 S.W.2d 804, and Fanelli v. Commonwealth, Ky., 418 S.W.2d 740. The trial court has discretion in ruling upon requests for separate trials. Therefore, since we are here dealing with a matter of d......