Gholson v. Com.

• Decision Date: 25 June 1948
• Citation: 308 Ky. 82,212 S.W.2d 537
• Parties: GHOLSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

212 S.W.2d 537

308 Ky. 82

GHOLSON v. COMMONWEALTH.

Court of Appeals of Kentucky

June 25, 1948

Appeal from Circuit Court, Pulaski County; Edwin R. Denney, Judge.

Ward Gholson was convicted of carrying a concealed pistol, and he appeals.

Judgment reversed with directions.

H. C. Kennedy, of Somerset, for appellant.

A. E Funk, Atty. Gen., and W. C. Herdman, Asst. Atty. Gen., for appellee.

CAMMACK Justice.

In May 1947, Ward Gholson, age 22, was indicted in Pulaski County for carrying a concealed pistol. When Gholson was brought to trial in September, 1947, without being represented by counsel, he entered a plea of guilty and his punishment was fixed at two years in prison. In his motion and grounds for a new trial, which were overruled, Gholson set forth that he was a resident of Wayne County, a county adjoining Pulaski he was practically a stranger in that county; when his prosecution was called for trial he was not advised as to what his legal rights were in the premises; he was without money with which to employ counsel; the court did not assign counsel to defend him; he was searched unlawfully by two Pulaski County deputy sheriffs because they had no search warrant; he had committed no offense in their presence; and he is not legally guilty of the offense with which he was charged. This appeal is based upon the contention that the trial court should have granted Gholson a new trial.

No evidence was introduced. The motion and grounds for a new trial were based upon Gholson's affidavit and that of Judge Roscoe Tartar, who presided over Gholson's examining trial as Judge of the Pulaski County Court. Judge Tartar's affidavit set forth that the two deputy sheriffs stated they searched Gholson and were about to relinquish the search when they concluded to search his boot; they found a revolver in his boot; and they made no claim that Gholson attempted to injure or hurt either of them in any way. The Commonwealth offered no counter affidavits; therefore, we must take the record as it stands. From it we are justified in assuming that Gholson was searched illegally because the officers had no search warrant; no offense had been committed in their presence; and from Judge Tartar's statement the officers had virtually abandoned the search when they decided to look in Gholson's boot for a pistol.

In recent cases we have held that a trial court is under no duty or obligation to assign counsel to a defendant where he fails to make a request therefor. Hamlin v. Commonwealth, 287 Ky. 22, 152 S.W.2d 297; Moore v. Commonwealth, 298 Ky. 14, 181 S.W.2d 413. A contrary view was expressed, however, in English v. Commonwealth, 216 Ky. 608, 288 S.W. 320, wherein it was said that a trial court should appoint counsel where its attention is called to the fact that the defendant is not represented by counsel, unless the defendant for some reason does not desire the appointment of counsel. In support of that proposition the case of Turner v. Commonwealth, 89 Ky. 78, 1 S.W. 475, 476, is cited in the English opinion. In the Turner case a motion was made to have the case redocketed after the defendant had served some 11 years in the penitentiary under a life sentence conviction for murder. In overruling the motion to redocket it was pointed out that, since the right of appeal in a criminal case is not a constitutional one, the accused must conform to the rules prescribed by law for the bringing of his case to the appellate court. During the course of the opinion it was said: '* * * A suggestion that the prisoner is without counsel, or unable to employ one, would require the interposition of the court in his behalf; but after the lapse of so many years, although confined within the walls of a prison, it would be a dangerous precedent to entertain such motions, or to rehear cases by reason of the neglect of counsel, or the want of ability on the part of the condemned to make an employment.'

In the case of Holland v. Commonwealth, 241 Ky. 813, 45 S.W.2d 476, 477, which is cited in the Hamlin case, it is said: '* * * Although it is true that the Constitution guarantees to the accused in all criminal prosecutions the right to be heard by himself and counsel, it is not the duty of the court to assign counsel to the accused unless he requests it, and shows that he is financially unable to employ counsel, or lacks sufficient mental capacity to conduct the defense, or to understand its nature. Grogan v. Commonwealth, 222 Ky. 484, 1 S.W.2d 779.'

The Hamlin case was cited with approval in the Moore case, supra, but the accused, who had pleaded guilty, was granted a new trial. During the course of the opinion in the Moore case it was said that, since the accused was young and inexperienced in legal matters and court proceedings and was tried in the absence of any member of his family or friends and without the assistance of counsel, it was the duty of the court to protect his rights with respect to the admission of only competent evidence and non-prejudicial statements of the commonwealth's attorney. It was also pointed out in that opinion that it is the duty of the trial court to see that an accused has a fair trial. We held that the admission of prejudicial evidence and improper arguments of the commonwealth's attorney were prejudicial to the substantial rights of the accused and he was granted a new trial.

In the Hamlin case the accused insisted upon appeal that he had requested the trial court to appoint counsel for him and a motion in that respect was overruled, to which he took exception. The bill of exceptions showed that the motion and grounds for a new trial contained this complaint and that the accused filed his affidavit in support thereof. However, the authenticity of the statements set forth in the affidavit was not asserted in the bill of exceptions. There was no certification that the questions toward which complaint was directed occurred on or before the trial of the case. Several cases were cited in support of the proposition that such a presentation of a case is insufficient for consideration on appeal. It is set forth further in the Hamlin opinion that it is now the established rule that as a prerequisite to our right to determine whether the denial of a motion was prejudicial it is necessary that the lower court or bystanders certify to us in the bill of exceptions the fact that the motion was made and overruled, and that the complaining party at the time excepted to the ruling of the court.

With the exception of the case of Holland v. Commonwealth, supra only civil cases were cited in support of the views expressed in the Hamlin case. Generally speaking, unless otherwise provided by law, rules of procedure applying to civil cases apply as well to criminal cases. We find no fault with the views expressed in the Hamlin opinion as a general proposition; however, in the case at bar, we are dealing with a sacred and constitutional right of one accused of a felony; namely, the right to be given a fair and impartial trial before a jury composed of his peers. Furthermore, an accused has a right under Section 11 of the Constitution to be heard by himself and counsel. It is true that the right to be represented by...