Holtman v. Commonwealth

• Decision Date: 09 October 1908
• Citation: 129 Ky. 710,112 S.W. 851
• Parties: HOLTMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

112 S.W. 851

129 Ky. 710

HOLTMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 9, 1908

Appeal from Circuit Court, Jefferson County; Criminal Branch.

"To be officially reported."

Louise Bullock Holtman was convicted in justice court of a breach of the peace, and she appeals from an order of the circuit court dismissing her appeal. Reversed and remanded.

D Moxley, for appellant.

Jas Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., and Pryor, Sapinsky & Castleman, for the Commonwealth.

SETTLE J.

Appellant appears to have been arrested under a warrant from the court of Ed Meglemery, a justice of the peace for Jefferson county charging her with a breach of the peace. The trial took place in the justice's court without the intervention of a jury, and, upon her plea of guilty, that court rendered a judgment of conviction whereby her punishment was fixed at a fine of $100 and 50 days imprisonment in jail. The judgment recites that its execution would be suspended 10 days "upon the request and motion of the defendant." Below the judgment are these words and signature: "I have read the above judgment, and it meets with my approval. Louise Bullock Holtman." Shortly after the rendition of the foregoing judgment appellant prosecuted an appeal therefrom to the circuit court. In the latter court appellant, upon or before the calling of the case for trial moved to withdraw the plea of "guilty" made by her in the magistrate's court, and offered to enter the plea "not guilty." At the same time counsel for the commonwealth moved for a judgment against her on the face of the papers. The circuit court overruled both motions, and, upon its own motion, dismissed the appeal. Appellant thereupon entered motion to set aside the order of dismissal and for a trial of her appeal, filing in support thereof her affidavit to the effect that she would, if afforded the opportunity, prove that she did not voluntarily enter in the magistrate's court the plea of guilty; and that such plea, as well as the entry on the records of that court expressing her approval of the judgment rendered by the magistrate, was made under fear and duress. Her motion, however, was overruled by the circuit court, and, from the order dismissing the appeal in that court, she prosecutes the present appeal.

The dismissal of the appeal by the circuit court was error. Even if the appellant had not attempted to withdraw the plea of guilty after the case reached that court, she nevertheless had a right to introduce evidence to mitigate the punishment the magistrate having gone to the maximum limit in fixing it, both as to fine and imprisonment. As said in Cornelison v. Commonwealth, 84 Ky. 592, 2 S.W. 236: "When the plea of guilty has been entered, the commonwealth to increase, and the defendant to mitigate the punishment, has the right to introduce testimony to enable the jury (or court) to render a true verdict (or judgment) when making the inquiry as to the extent of the punishment." Mounts v. Commonwealth, 89 Ky. 277, 12 S.W. 311. We are of opinion, however, that appellant's plea of guilty entered in the justice's court did not prevent her taking an appeal to the circuit court, or deprive her of the right to a trial in that court upon the charge contained in the warrant originating in the justice's court; and, if entitled to a trial in the circuit court, she had the right at any time during the trial, and before judgment was rendered in that court, to withdraw the plea of guilty previously entered in the justice's court, and in lien thereof enter a plea of not guilty. Cr. Code Prac. § 366, provides: "Upon the appeal the case shall...