Jones v. Commonwealth of Kentucky

• Decision Date: 08 June 1938
• Docket Number: No. 7978.,7978.
• Citation: Jones v. Commonwealth of Kentucky, 97 F.2d 335 (6th Cir. 1938)
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: JONES v. COMMONWEALTH OF KENTUCKY.

97 F.2d 335 (1938)

JONES v.COMMONWEALTH OF KENTUCKY.

No. 7978.

Circuit Court of Appeals, Sixth Circuit.

June 8, 1938.

Perry B. Miller, of Louisville, Ky. (Perry B. Miller, of Louisville, Ky., and Arthur Rhorer, of Middlesboro, Ky., on the brief), for appellant.

A. E. Funk, of Frankfort, Ky. (Hubert Meredith, of Greenville, Ky., and A. E. Funk, of Frankfort, Ky., on the brief), for appellee.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The appellant was convicted of murder and sentenced to death by a Kentucky court.Having exhausted local remedies by way of petition for new trial, appeal, petitions for writ of habeas corpus and for writ of coram nobis, he challenged the manner of conviction as impairment of his right to due process under the Constitution of the United States (Amendment 14) by petition for writ of habeas corpus in the United States District Court.

The Attorney General of Kentucky, after "giving the matter more than ordinary consideration," is "strongly inclined to the view that Tom Jones was convicted on perjured testimony."The Court of Appeals of Kentucky, suppressing "sympathy for him, because of his unfortunate predicament," relegated him to his last and final remedy of an appeal for clemency, although we are told, without contradiction, that it is public information that the Governor of the Commonwealth conceives himself bound by a pledge not to exercise the pardoning power.The United States District Judge, now a judge of this court, seemingly convinced that appellant's constitutional rights were impaired and that his conviction was procured by perjured testimony, questioned the power and propriety of a single district judge to reverse the decision of the highest court of the state, and with commendable restraint, contented himself with the issuance of a certificate of probable cause to permit decision by a court clothed with greater authority.And so, unless there is power here to relieve the appellant from a result the injustice of which is so strongly suggested, and impairment of constitutional rights is so clear as to call for its exercise, the man must die.

The appellant was indicted November 4th on the charge of murder for the killing of his wife with a pistol on October 30th.On Friday, November 8th, he was arraigned, pleaded not guilty, counsel was appointed for him, and trial was set for Tuesday, November 12th.Though the case was not reached until Thursday, November 14th, counsel was obliged to remain in court subject to call.Excluding Sunday, November 10th, three days were thus left for the preparation of the defense.Motion for a ten-day continuance, supported by affidavits, was denied.No one had seen the shooting.The principal witnesses for the commonwealth were a six year old girl, who testified as to a threat of killing by the appellant, and a woman of ill repute, who testified to the slain woman's dying declaration.The defense was that the pistol was discharged in a scuffle for its possession when the wife threatened her own life.Newly discovered evidence offered to the state courts, in support of the several petitions thereto addressed, casts grave doubt upon the competency and freedom from duress of one and upon the veracity of both of the prosecution's principal witnesses.The court below, and the Attorney General of Kentucky, who cross-examined the witnesses on the first habeas corpus petition, were obviously impressed by the new evidence.The statement of the latter to the Court of Appeals of Kentucky is printed at length in the margin.¹Thrice in this court does he repeat his doubt of the justice of the judgment.The Kentucky court did not directly pass upon the newly discovered evidence, basing its denial of the writs of habeas corpus and coram nobis on jurisdictional grounds.Jones v. Commonwealth, 267 Ky. 465, 102 S.W.2d 345;Id., 269 Ky. 772, 108 S.W.2d 812;Id., 269 Ky. 779, 108 S.W.2d 816.It is clear from the record below that none of the new evidence was known to the appellant or his counsel at the time of the trial, and it is likewise clear that much of it would have been discovered had a reasonable continuance been granted for the purpose of preparing a defense and had the trial been held in the division of the judicial district where the crime was alleged to have been committed and where the appellant lived.

The writ of habeas corpus in the present case was presented to the court below in pursuance of section 453, T. 28, U. S.C., 28 U.S.C.A. § 453, and the appeal from its denial is entertained under section 466 of the same title, 28 U.S.C.A. § 466.We are not insensible to the extraordinary nature of the writ and the caution that must be exercised in granting it where, as here, the petitioner has been denied relief by the courts of the state.Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969;Ashe v. United States, 270 U.S. 424, 425, 46 S.Ct. 333, 334, 70 L.Ed. 662;Bard v. Chilton, 6 Cir., 20 F.2d 906.It is not a substitute for appeal, Knewel v. Eagan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036, and errors of law upon the trial are not through it subject to review.Frank v. Mangum, supra.But the complaint here is not the commission of mere error, "but of a wrong so fundamental that it must make the whole proceeding a mere pretense of a trial and render the conviction and sentence wholly void."Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682;Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543.It is true that the trial court recognized its duty to assign counsel as a necessary requisite of due process of law.But "that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case."Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527(the first Scottsboro case).It is likewise true that three days were available to counsel within which to make an investigation and to prepare for defense.But when we take into consideration that this was a capital case, that the defendant was in jail and unable to himself give assistance, that the trial was to be held at a...