Hendrickson v. Commonwealth

• Decision Date: 14 February 1912
• Citation: 146 Ky. 742,143 S.W. 433
• Parties: HENDRICKSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

143 S.W. 433

146 Ky. 742

HENDRICKSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 14, 1912

Appeal from Circuit Court, Bell County.

Nick Hendrickson was convicted of murder, and appeals. Affirmed.

O'Rear & Williams, E. N. Ingram, and J. M. Gilbert, for appellant.

James Garnett, Atty. Gen., and James D. Black, First Asst. Atty Gen., for the Commonwealth.

MILLER J.

On August 15, 1911, "Mexican Joe" Morgan was shot and killed at Four Mile, in Bell county. The appellant, Nick Hendrickson, and his brothers Elbert and Press Hendrickson were arrested and jointly indicted, on August 31, 1911, upon the charge of having willfully murdered Morgan. The indictment contains two counts; the first charging the three brothers with killing the deceased, and the second charging that one of them (which one, however, is not known to the grand jury) did the killing, while the other two were present and aided and abetted in the murder. Appellant's trial was begun on October 9, 1911, and resulted in a verdict and judgment committing him to the penitentiary for life. He appeals, and in his motion for a new trial he assigns as reasons for a reversal of the judgment the following grounds (1) That the verdict is not sustained by the evidence; (2) error of the trial court in refusing to admit competent evidence in appellant's behalf; (3) error of the trial court in admitting incompetent evidence to appellant's prejudice; and (4) error of the trial court in instructing the jury. In addition to these assigned errors, the following further grounds are urged in argument here for a reversal of the judgment: (5) That the names of all the witnesses for the commonwealth who appeared before the grand jury were not written at the foot of or on the indictment, as required by section 120 of the Criminal Code; (6) that the indictment was not presented by the foreman of the grand jury to the court in the presence of the grand jury, and filed with the clerk, as is required by section 121 of the Criminal Code; and (7) that the jury was not drawn from the wheel or drum, as is required by section 2247 of the Kentucky Statutes.

It is insisted on behalf of the commonwealth that the court's jurisdiction upon this appeal is limited to a review of the grounds stated in the motion and grounds for a new trial; and that none other can be considered. Section 274 of the Criminal Code of Practice reads as follows: "The grounds upon which a motion for a new trial is made, must be stated in writing, and filed at the time of making the motion." This question has been before this court many times, and the practice is well settled in favor of the contention of the commonwealth. In Ison v. Commonwealth, 66 S.W. 184, 23 Ky. Law Rep. 1805, we said: "It is a well-settled rule of this court that appellant should state in his reasons for a new trial the grounds upon which he thinks the prejudicial error was committed. If the attention of the trial court had been called to this error, if such error, in fact, occurred, doubtless the circuit judge would have granted a new trial." And in the late case of Thompson v. Commonwealth, 122 Ky. 501, 91 S.W. 701, 28 Ky. Law Rep. 1137, this court said: "From these Code provisions, and the various decisions relating thereto, the rule may be deduced that, with the exception of errors committed in the admission or rejection of evidence, to which proper objection and exception must be made and taken at the time and appear in the bill of exceptions, it is necessary to point out, in a motion for a new trial, all errors committed during the progress of the trial upon which it is intended to rely in this court, or they cannot be considered on appeal; nor will this court, except in the matter of instructions, consider errors that appear for the first time in a motion for a new trial."

Furthermore, section 281 of the Criminal Code of Practice, as amended by the act of 1910, c. 92, provides as follows: "The decisions of the court upon challenges to the panel, and for cause, or upon motions to set aside an indictment, shall not be subject to exception."

In first disposing of the grounds not specified in the motion and grounds for a new trial, it is sufficient to say that the fifth objection, based upon the fact that the indictment does not show the names of all the witnesses who were examined by the grand jury were written at the foot of or on the indictment, can avail appellant nothing under the repeated decisions of this court. The indictment bears this indorsement: "Witnesses: Lizzie Morgan and others."

In Underwood v. Commonwealth, 119 Ky. 384, 84 S.W. 310, 27 Ky. Law Rep. 8, and in Thompkins v. Commonwealth, 90 S.W. 221, 28 Ky. Law Rep. 643, it was held that the provisions of section 120 do not render incompetent other witnesses for the commonwealth whose names were not in any subp na, or at the foot of any indictment.

In speaking of Code provision 120, above referred to, in Dowell v. Commonwealth, 108 S.W. 847, 32 Ky. Law Rep. 1344, we used the following language: "The purpose of this statute is to inform the defendant of the names of his accusers. It is directory, and ought to be complied with. But a failure to do so neither invalidates the indictment nor prevents the introduction of the witnesses whose names do not so appear. Underwood v. Commonwealth, 119 Ky. 384, 84 S.W. 310, 27 Ky. Law Rep. 8."

And, although an infirmity of this character in the indictment may be corrected by a motion to quash or set aside the indictment upon the arraignment of the prisoner, as required by section 157 of the Code, nevertheless, under section 281 of the Code, above quoted, the decision of the court upon a motion of this character is not subject to exception, and cannot therefore be reviewed upon appeal.

The sixth objection is based upon section 121 of the Criminal Code of Practice, which reads as follows: "The indictment must be presented by the foreman, in the presence of the grand jury, to the court, and filed with the clerk, and remain in his office as a public record." In this case, the indictment bears the following indorsement: "Received from the hands of the foreman of the grand jury, in the presence of the grand jury, and filed in open court, on the 31st day of August, 1911. R. B. Rice, Clerk." The point is made that this indorsement fails to show that the indictment was returned to the court, as is required by section 121, above quoted. The objection is, however, overcritical, since the indorsement shows that the indictment was filed in open court, which is equivalent to returning it to the court. A substantial compliance is all that is required.

In Patterson v. Commonwealth, 86 Ky. 316, 5 S.W. 387, 9 Ky. Law Rep. 481, an indorsement upon an indictment reading, "This day the foreman of the grand jury reported an indictment, a true bill, against Albert Turner and William Patterson for willful murder and previous convictions, which said indictment is as follows," etc., was held to be a sufficient compliance with section 121 of the Code.

And in Pearce v. Commonwealth, 8 S. W. 893, 10 Ky. Law Rep. 178, an indorsement upon an indictment reading, "Received from the foreman of the grand jury, in the presence of the grand jury, and filed in open court"--practically the same wording as in the case at bar--was held to be a sufficient compliance with the requirements of the Code. See Pence v. Commonwealth, 95 Ky. 618, 26 S.W. 810, 16 Ky. Law Rep. 148, Commonwealth v. English, 6 Bush, 431, and Jane v. Commonwealth, 3 Metc. 18, for rulings showing the liberality with which this section of the Code has been construed by this court in holding, in effect, that an indorsement which identifies the indictment is sufficient.

As to the seventh objection, concerning the selection of the jury, it is sufficient to say that section 281, above quoted, precludes our examination of that question.

In Turner v. Commonwealth, 80 S.W. 197, 25 Ky. Law Rep. 2161, we said: "In Curtis v. Commonwealth, 110 Ky. 845 [62 S.W. 886, 23 Ky. Law Rep. 267], it was held that the manner of selecting the jury in that case was unlawful. But, as section 281, Criminal Code of Practice, provides that 'the decisions of this court upon challenges to the panel and for cause, upon motion to set aside an indictment, and upon motions for a new trial, shall not be subject to exception,' this court is without power, or jurisdiction to revise such an error, and, though in one or two cases previously decided the court appeared to have held otherwise, it has, since the decision in Curtis v. Commonwealth, supra, uniformly adhered to the rule therein expressed." See, also, Alderson v. Commonwealth, 74 S.W. 679, 25 Ky. Law Rep. 32, and Terrell v. Commonwealth, 13 Bush, 246.

Recurring now to the grounds specifically assigned in the motion for a new trial, we are by no means prepared to say that the verdict is not sustained by the evidence. And since that question is now reviewable under the amendatory act of 1910 to section 281, supra, a brief review of the testimony becomes necessary. Wilson v. Commonwealth, 140 Ky. 3, 130 S.W. 794.

Morgan was conducting an itinerant show; his outfit consisting of two tents--a large tent, in which the show was conducted, and a smaller one, placed about 50 yards distant, which ...