Hensley v. Commonwealth

• Decision Date: 27 May 1903
• Citation: 74 S.W. 677
• Parties: HENSLEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

74 S.W. 677

HENSLEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 27, 1903

Appeal from Circuit Court, Breathitt County.

"Not to be officially reported."

John Hensley was convicted of murder, and he appeals. Reversed.

O. H Pollard, for appellant.

C.J Pratt and M. R. Todd, for the Commonwealth.

NUNN J.

On Sunday, March 15, 1903, the appellant shot and killed Bud Spicer. Four days later, to wit, March 19th, he was indicted and on the same day was brought out of jail, and his trial entered into, over his protest; and on the next morning March 20th, a verdict was returned by the jury finding him guilty, and fixing his punishment at 16 years' confinement in the penitentiary, and at once the court pronounced judgment upon the verdict. The appellant then filed his motion and grounds for a new trial, and moved the court to set aside the verdict and judgment, which motion the court overruled. The substance of the reasons filed for a new trial is as follows: Because the court refused to grant him a continuance, and forced him into a trial on the day the indictment was found, and in the absence of all his witnesses; because the defendant did not have time or opportunity to prepare his defense, or to investigate and ascertain what evidence material to his defense was in reach; because defendant's counsel had no opportunity or time to consult with the witnesses, or to make any preparation for defense, before his trial was begun, or even to ascertain appellant's version of the difficulty; because the jury who tried the case were taken by the officer who had charge of the jury to the home of Bryant Spicer, an uncle of the deceased, and were there fed, lodged, and housed, both before and after the case was finally submitted to them.

Courts are to be commended for giving par ties speedy trials, but the courts should be careful to see that both the prosecution and the defense should have reasonable opportunity and time in which to investigate and prepare for the prosecution and defense. In this case appellant's counsel filed the following affidavit in support of the motion for a continuance: "The affiant, O. H. Pollard, says he was employed to defend the defendant, John Hensley, after dinner yesterday. That at the time he accepted said employment he was not aware that there would be an effort to try this case at the present term. That he knew that quite a number of important civil cases had been set down for trial on to-day by special agreement, and that he was engaged as counsel in at least one-half dozen of said cases; one of which was a damage suit involving $5,000, and another damage suit involving $10,000. That, with the expectation and understanding that they were to be tried, witnesses and attorneys were expected from different counties; one of said witnesses living in New York state, and one of said counsel living in Ashland, Ky.; and supposing that, under these circumstances, said causes would have precedence on the docket, and little dreaming or supposing that an effort would be made to have a trial of this indictment at this term, he accepted said employment. He had a professional engagement to be at the Powell circuit court at Stanton, Ky. on to-morrow, and that he is bound to keep such engagement. That he has not conversed with any witnesses for the defense, nor had an opportunity to see any witnesses, and has made no preparation for this trial, save having subp nas placed in the hands of the sheriff to secure the attendance of witnesses. He says it is impossible for him to properly present and prepare the defense of the defendant at this term, since he cannot be present on to-morrow or next day, owing to his aforesaid previous professional engagements, and this court expires by limitation on day after to-morrow. That he cannot intelligently present a defense on to-day. If defendant's witnesses were all present in the limited time he has in this court, he could scarcely ascertain the facts within the knowledge of the witnesses. That it is now 11 o'clock, and, if this trial is to proceed, he will either be forced to retire now or before it is finally submitted to the jury, since his engagements will not permit him to remain after to-day. He says he would not have accepted employment in this case had he known that it would conflict with his other engagements, and that, owing to the foregoing circumstances, he finds himself in this embarrassing position. He does not believe it possible for the defendant to have his case presented at this term under the circumstances. That he has not had time even to acquaint himself with the defendant's version of the difficulty." This affidavit was sworn to March 19, 1903. The appellant filed an affidavit to the same effect, and giving the name of absent witnesses, and what he expected to prove by them, and, in addition, stated that just prior to the difficulty there was a conspiracy formed by the deceased with two of the prosecuting witnesses in a room at the house of one Tharp to take the life of this appellant. He named two of the persons present, or that he understood to be present, and stated that there were others there, whose names he had not been able and had had no opportunity to ascertain, and that, if given an opportunity, he could find out the names of these persons, and be able to prove that the conspiracy was actually formed.

It was said in the case of Wells v. Com. (Ky.) 13 S.W. 915 "It is true one accused of crime may be tried at the term of court when the indictment is found; but it has always been the practice, and it is one in the...