Jones v. Commonwealth

• Decision Date: 24 April 1931
• Citation: 238 Ky. 453,38 S.W.2d 251
• Parties: JONES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

38 S.W.2d 251

238 Ky. 453

JONES v. COMMONWEALTH.

Court of Appeals of Kentucky

April 24, 1931

Appeal from Circuit Court, Franklin County.

Elmer Jones was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Polk South, Jr., of Frankfort, for appellant.

J. W Cammack, Atty. Gen., and Samuel B. Kirby, Jr., Asst. Atty Gen., for the Commonwealth.

DIETZMAN J.

The appellant was convicted of the crime of voluntary manslaughter and sentenced to serve three years in the penitentiary. He appeals.

As grounds for reversal, he insists that the lower court erred in refusing a continuance asked; in admitting certain testimony over his objection; and in refusing to grant him a new trial because of newly discovered evidence. The homicide out of which this prosecution arises occurred about the 1st of September, 1930. The witnesses say it happened on Sunday but do not give the date. The indictment says it occurred on the 4th day of September, but that was not Sunday. At all events, appellant was indicted on September 9th following and tried on the 22d. The record recites that, when his case was called for trial, the appellant announced that he was not ready, and moved the court for a continuance upon the ground of the absence of two important witnesses, George Thomas and John Neal. In support of his motion for a continuance, the appellant filed his affidavit setting out what these witnesses would state were they present and testifying. The order of the court reads that the motion for a continuance was overruled, but by agreement of the parties the affidavit of the appellant was allowed to be read as the evidence of the absent witnesses subject to competency and relevancy. Despite this order of the court as above set out, we find in the bill of exceptions the statement that the commonwealth would not agree that the appellant's affidavit should be read as the evidence of the absent witnesses, but did agree that the testimony of George Thomas given on the examining trial might be read as his evidence. We find no objection or exception in the record to this, and, so far as the bill of exceptions shows, the testimony of George Thomas given in the examining trial was read by the appellant without objection on his part or any claim that he was forced to do so by the court. But, be that as it may, the record fails to show any diligence whatever on the part of the appellant to procure the attendance of the two absent witnesses. His affidavit states that he had caused a subpoena to be issued for the witnesses and placed in the hands of the sheriff of Jefferson county, but he does not say when he issued this subpoena or when he placed it in the hands of the sheriff of Jefferson county, in which the city of Louisville containing over 300,000 people is located, or that he gave the sheriff any address or directions where he might find these absent witnesses. In the absence of a showing of some diligence on the part of the appellant to procure the attendance of the absent witnesses, the trial court did not err in overruling his motion for a continuance. Hall v. Commonwealth, 196 Ky. 167, 244 S.W. 425; Garrison v. Commonwealth, 169 Ky. 188, 183 S.W. 473.

It follows that any offer that the commonwealth made to him about the reading of Thomas' testimony on the examining trial was a concession of which appellant could avail himself or not as he chose. He did, without objection, take advantage of the offer, and he cannot now complain that he did. Further, so far as the absent witness John Neal is concerned, all that he would have testified had he been present, according to appellant's affidavit, was that the deceased was a violent person, and all the witnesses, both for the commonwealth and appellant, stated that this was so. Some claim is made that the court should have granted the continuance asked in order that appellant's counsel could have opportunity to prepare the case for trial. We do not find anywhere in the record, except in the bill of exceptions, that any such request was made. But counsel had had practically two weeks within which to prepare the case, and, whilst they were no doubt busy due to the September term of court then being in session, there is no showing by affidavit to that effect. But, even if they were busy, there is no showing that would indicate that appellant's trial counsel (his present counsel not having been his trial lawyers) could have been better prepared for trial had a continuance been granted. Practically all the witnesses who were present at the time of the homicide testified. We can find no material difference between this case and that of Haywood v. Commonwealth, 221 Ky. 378, 298 S.W. 985, where we said the failure to grant a continuance asked on the ground here asserted was not an abuse of discretion on the part of the trial court warranting a reversal of the judgment. There is no merit in the first ground for a reversal.

Coming to the second ground, we find that the commonwealth was permitted to prove that the deceased had said in a dying declaration that the appellant had killed him for nothing. This evidence was incompetent. Philpot v. Commonwealth, 195 Ky. 555, 242 S.W. 839, 25 A. L. R. 1367. It appears that at the time this evidence was introduced it was objected to by the appellant, and that there was a running controversy between the appellant's counsel and the commonwealth's attorney as to its introduction. The court consistently overruled the objections of the appellant, but only in one place do we find that the appellant reserved any exception. Conceding that the reservation of this one exception preserved the appellant's rights, we are yet met with the proposition as to whether or not appellant on this appeal may rely as a ground for reversal upon the admission of this incompetent evidence when he failed to incorporate such claimed error in his grounds in support of his motion for a new trial filed in the lower court. In the case of Johnson v. Commonwealth, 9 Bush, 224, it was held that, as section 267 of the then Criminal Code of Practice, now section 271 of the present Criminal Code of Practice, did not in specific terms provide that an error in the admission or rejection of testimony was a ground for a new trial, it was unnecessary to set up such error in the motion and grounds for a new trial in order for it to be available on appeal. The court, however, said that, if the lower court's attention were called to such error, it should grant a new trial because of it. In the case of Turnbull v. Commonwealth, 79 Ky. 495, in a very short opinion, the rule of the Johnson Case concerning the necessity of the error as to the reception and rejection of testimony appearing in the motion and grounds for a new trial for it to be available on appeal was followed without discussion of the principle involved.

Jumping for the present from the year 1881, the date of the Turnbull Case, to the year 1913, we come to the case of L. & N. R. Co. v. Commonwealth, 154 Ky. 293, 157 S.W. 369. In this case the railroad was indicted for a failure to block a frog of its railroad track, as the statute required. On its trial certain evidence was admitted against it which the railroad claimed to be incompetent, and it relied upon its erroneous admission as a ground for reversal of the judgment. In passing on the question, this court said: "It would be a sufficient answer *** to point out the fact that this alleged error was not made a ground for a new trial, and cannot therefore be considered upon appeal. It is a well-settled rule of this court that no error committed during the trial is available upon appeal, unless it has been specifically relied upon in the grounds for a new trial."

The only authorities cited in support of that proposition were those in civil cases. The court did not refer to the Johnson or Turnbull Cases or others that we shall presently mention. Which is the rule which must now govern the question presented in this case--that of the Johnson and Turnbull Cases or that of the L. & N. R. Co. Case? There is...