Harlan v. Commonwealth
| Decision Date | 16 January 1934 |
| Citation | 253 Ky. 1 |
| Parties | Harlan v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
3. Criminal Law. — State where defendant did not include in record order extending term was properly permitted to show order by supplemental record (Civil Code of Practice, sec. 737).
4. Criminal Law. — Court where appellant fails to bring up entire record to prejudice of appellee will allow such corrections as will enable it to properly determine case.
5. Criminal Law. — Statements of person riding with deceased immediately after killing held not admissible as substantive evidence as part of res gestae.
6. Criminal Law. — Statements of bystanders, not parties to controversy or action, are not admissible as part of res gestae.
7. Witnesses. — Admission of testimony respecting reputation of defense witnesses held erroneous, where witnesses admitted it had been 8 or 10 years since they had lived in community with witness about whom they had testified.
8. Criminal Law. — Any error in admitting testimony respecting bad reputation of defense witness was not prejudicial, where testimony of such witness was only cumulative.
9. Criminal Law. — Court will not grant new trial on ground of admission or exclusion of cumulative evidence when fact in issue has been established by other witnesses.
10. Homicide. — Conflicting evidence respecting guilt of defendant convicted of manslaughter held properly submitted to jury.
11. Criminal Law. — Trial court has duty of submitting case to jury if there is any evidence, however slight or circumstantial, which tends to show guilt of crime charged.
12. Criminal Law. — Appellate court will not reverse verdict of guilty sustained by some evidence, although against preponderance of evidence.
Appeal from Monroe Circuit Court.
B.F. DENHAM, MAX HARLIN, V.H. BAIRD and BAIRD & GARNETT for appellant.
BAILEY P. WOOTTON, Attorney General, and H HAMILTON RICE, Assistant Attorney General, for appellee.
Affirming.
W.E. Harlan was indicted by the grand jury of the Monroe circuit court for the willful murder of O.T. Peden. He was tried at the December, 1932, term of the Monroe circuit court, found guilty of manslaughter, and sentenced to confinement in the penitentiary for 12 years. He appeals.
The case was tried on appeal in this court on the 26th day of September, 1933, and reversed on the ground that the verdict of the jury was rendered, received by the court, and judgment entered thereon the day after the regular term of the court had expired. The record before us at that time did not disclose that any order extending the term of the court had been made.
A petition for a rehearing was filed on behalf of appellee with a motion to supplement the record by filing a properly certified copy of the order extending the term, which order, for some reason, was not copied or made a part of the record before us at the time the case was tried as above stated. Appellant objects to the filing of this supplemental record at this time. It is insisted that the order purporting to extend the term of the court was entered after the term had expired, which was on the 17th day of December, 1932. The order now before, us which is properly certified by the clerk reads:
It is conceded that the regular term ended on the 17th day of December, 1932. The caption of the order discloses that the order was made on the 17th day of December, 1932, and, there being no evidence to the contrary, we take it as being the correct date of the making and entering the order.
The regular circuit judge of the Monroe circuit court was disqualified to try this case, and the Chief Justice of this court designated the Honorable Chas. C. Marshall, judge of the Twelfth judicial district, to try the case. The evidence was concluded in the late afternoon on Saturday, December 17th, and the cause submitted to the jury. It being apparent that the jury might not reach a verdict before midnight at which time the regular term expired, the above order was entered extending the term and signed by both the regular judge of the court and by Judge Marshall, the special judge.
It is insisted that, a special judge having been designated to try this case, the regular judge had no power or right to make an order in the case or to extend the term of the court for the purpose of finishing the trial, and that the special judge had no authority or right to extend the term of court or to receive a verdict on Sunday. The right of a special judge respecting the trial of a case which he has been designated to try is governed by section 971-1 et seq. of the Kentucky Statutes. Section 971-2, authorizing the Chief Justice to designate a circuit judge to act as special judge, in part reads:
"* * * And the circuit judge so designated by the Chief Justice shall have all the power of the regular Judge of the court over which he is designated to preside."
This question was fully discussed and the law applicable thereto fully and aptly stated in the recent case of Hall v. Eversole's Adm'r, 251 Ky. 296, 64 S.W. (2d) 891. It was held in the case, supra, that a special judge has the right to extend the term and is vested with the same power and authority pertaining to the case which he has been designated to try as a regular judge has. Without giving further time and space to the discussion of the law on this question, it is sufficient to say that a reading of the Hall-Eversole Case, supra, and authorities cited therein, is conclusive on this question. It follows, therefore, that the special judge had the right to extend the term for the purpose of continuing and completing the trial of this case.
It is next insisted that the court could not receive a verdict on Sunday, as was done in this case. The order extending the term "for the purpose of disposing of all unfinished Commonwealth and Criminal and Civil business now pending this court's docket" was broad enough to include necessary time to finish the trial of this case, and the fact that the verdict was returned and received on Sunday does not render it void. Bales v. Commonwealth, 11 S.W. 470, 11 Ky. Law Rep. 297; Franklin v. Commonwealth, 105 Ky. 237, 48 S.W. 986, 20 Ky. Law Rep. 1137.
It is further insisted for appellant that the supplemental record (order extending the term) cannot now be considered on the petition for a rehearing, on the theory that a record brought up to this court on schedule filed in the clerk's office of the lower court as prescribed by section 737 of the Civil Code of Practice is presumed to be the complete record, and that all parties interested have consented to try the appeal on such record. In support of this contention are cited the cases of Clevinger v. Nunnery, 140 Ky. 592, 131 S.W. 519; White's Adm'x v. White et al., 148 Ky. 492, 146 S. W. 1101; and Bryant v. Hamblin, 183 Ky. 716, 210 S. W. 786. The rule enunciated in the cases, supra, seems to be based upon the theory that such rule prevails when the record is brought to this court by an appellant pursuant to schedule filed in the clerk's office of the lower court. It may not be amiss to say here that the record before us does not disclose that any schedule was filed in the clerk's office below.
It is the duty of the appellant to have copied and transmitted to this court the entire record, or at least so much thereof as is necessary to enable the court to correctly determine the case on its merits, and, if in this the appellant fails to the prejudice of the appellee, the court will allow such corrections as will enable the court to properly determine the case.
In the case of Robertson v. Robertson's Adm'r, 185 Ky. 503, 214 S.W. 972, 973, it is said: "It has long been the established practice of this court to permit the appellee, at any time before the final decision, to supply omitted portions of the record * * * which are essential to the correct decision of the case" — and citing a number of other cases of similar holdings.
The case of Miller Creek R.R. Co. v. Barnett, 160 Ky. 845, 170 S.W. 202, 203, involved a question of supplementing the record because of an error or other failure on part of the clerk in not copying the instructions given by the court. After the case had been tried and reversed by this court, the appellee sought to have the record corrected by supplying the instructions given by the court below. The appellee's attorney filed his affidavit in support of the motion to supplement the record, in which he stated that he never saw, and had no opportunity to see, the record as prepared by the clerk, and did not know of the mistake until the opinion was handed down. In the instant case one of the attorneys representing the commonwealth filed his affidavit in which he stated that he did not see the record nor had no opportunity to see it after it was copied by the clerk and before it was transmitted to this court, and that he did not know that the order extending the term had not been copied by the clerk and included...
To continue reading
Request your trial