Kitchen v. Commonwealth

• Decision Date: 30 October 1942
• Citation: 165 S.W.2d 547,291 Ky. 756
• Parties: KITCHEN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

165 S.W.2d 547

291 Ky. 756

KITCHEN v. COMMONWEALTH.

Court of Appeals of Kentucky

October 30, 1942

Appeal from Circuit Court, Carter County; R. C. Littleton, Judge.

Ennis Kitchen was convicted of an offense, and he appeals.

Reversed for new trial.

H. R Wilhoit, D. V. Kibbey, and John R. McGill, all of Grayson for appellant.

Hubert Meredith, Atty. Gen., and William F. Neill, Asst. Atty. Gen for appellee.

MORRIS Commissioner.

This is a second appeal; 275 Ky. 564, 122 S.W.2d 121. We reversed the judgment sentencing appellant to imprisonment for three years for detaining a woman, etc., under an indictment charging carnal knowledge of Virginia Mayo, a girl over twelve and under sixteen years of age, chiefly because of failure of the court to give an instruction on the law of attempt to commit the offense charged. We found fault with the manner in which the court had selected grand and petit jurors, and gave directions to the court to remand the indictment to a jury drawn in conformity to the statute. We also found irregularities on the court's ruling on objections to improper argument on the part of prosecuting officer.

Our opinion reversing was rendered in November, 1938, and on return the indictment was remanded; a grand jury at the February, 1939, term returned indictment, and the case was tried at the same term of court resulting in a hung jury. Thereafter it was continued from term to term, until trial at the August 1940 term, when the jury found appellant guilty, fixing the penalty at a fine of $500 and 90 days in jail, under an instruction on the common law of attempt.

Appellant in brief urges numerous grounds for reversal, presenting mainly procedural questions, it being contended that the rulings of the court in each instance constituted prejudicial error. Since this is true we shall make reference to testimony only as it appears necessary in discussing questions presented, as in our opinion on first appeal the facts are well stated, though it is claimed that contradictory evidence on the last trial somewhat weakens the case.

The first contention is that the court erred in overruling a motion to quash the indictment on the ground of irregularity in making up the list of jurors who were to do service at the August, 1940, term of court, based on an affidavit to the effect that the court in making up the list as required by the law, used a carbon making duplicate of the names and placed it in the drawer of his desk, leaving it there from the first of December until February of 1939, and that the "court room was open to the general public." The court overruled the motion to quash, and in doing so filed a memorandum in which he said he had made the carbon copy list, but had locked it in his desk drawer; held possession of the keys and was "sure no one saw the list before it was placed in the drawer, nor the carbon copy until taken out when court commenced." This was not contradicted.

The same objectionable feature we found in the first case is not common here, nor is our opinion controlling, though it went a long way in laying down the court's measure of the sanctity which should surround the making up of juries, and it is chiefly upon the reasoning therein that appellant relies for error in the case under discussion. While we do not sanction the procedure complained of, which had there been a showing of disclosure, might have justified a reversal, we are of the opinion that there was not prejudicial error in this respect. See Hopkins v. Com., 279 Ky. 370, 130 S.W.2d 764.

It is contended that there was fatal variance between the allegations of the indictment and the proof. The girl's name is Virginia Mayo. The indictment charged the offense to have been committed on the person of Virginia May. The question was raised by general objection to all proof relating to any offense committed against the person of Virginia Mayo. Counsel cites in support of his contention numerous cases where we have held variance fatal (as to names); as exemplary, Lissenbee v. Com., 198 Ky. 639, 249 S.W. 782, wherein we held fatal variance because the indictment charged a taking from Felix Turner, and the proof showed the property stolen belonged to Felix Napier. Much is said of the doctrine of idem sonans. However, we do not feel inclined to enter into dissertation on this subject, nor as to the application of cases cited by appellant.

Here appellant knew the person accusing him. He had gone through two trials when she faced him. He knew the party charging, as well as the charge he was to meet. The objection here is fully and satisfactorily answered, since it further appears that: "No question of identity was raised on the trial and it is not pretended that the mistake in the first name was prejudicial to defendant, or prevented him from having a fair trial." Rose v. Com., 286 Ky. 53, 149 S.W.2d 772, citing other authorities.

The contention that the court erred in giving an instruction on the law of attempt would be well taken if it were not for the "law of the case" rule. In our first opinion we reversed because of the failure of the court "under the unusual facts" to give such an instruction; the opinion was rendered on November 25, 1938; on June 20, 1941, we wrote Merriss v. Com., 287 Ky. 58, 151 S.W.2d 1030, 1034, reviewing former cases dealing with the subject and held that "it is never necessary in this type of prosecution to instruct on the commonlaw crime of attempt to commit rape since every such attempt is included in and covered by section 1158 of the Statutes, making it a felony to detain a woman against her will with intent to have carnal knowledge of her. Every attempt to have carnal knowledge of a woman by force or against her will is covered by the last-mentioned section."

While in the instant case the evidence seems to make it appear that force was used, the proof is clear that the offense was not complete, and the court gave an instruction on the law of detaining. We would be inclined to hold error under authority of the Merriss case were it not that we are compelled to adhere to the "law of the case" rule. Our opinion was the law of the case on the last trial and will prevail whether right or wrong. See Carrithers v. Jean's Ex'r, 259 Ky. 20, 81 S.W.2d 857, and cases cited therein. These were all civil cases, but In Johnson v. Com., 225 Ky. 413, 9 S.W.2d 53, citing cases to the same effect, we held that in this jurisdiction the rule applies as well to criminal cases.

We come now to alleged irregularity in the admission and rejection of evidence, which appellant contends constituted prejudicial errors. The appellant operated a grocery store on Main Street in the village of Hitchins. The store was leased from one of the prosecuting witnesses, whose evidence was damaging. The girl stated that the occurrence described by her took place on Friday afternoon; that as she was going home from school she went into the store at appellant's invitation, when he took her into a rear room and placed her on some feed sacks and attempted intercourse.

By reference to our first opinion it will be noted that Mrs. Vincent gave damaging testimony in the face of the absolute denial on the part of appellant. This witness testified that she looked through the window of the rear room and saw appellant in the act. She did not recognize the girl at the time, but later saw her come from the store crying. She then saw the child on Sunday and broached the subject.

There was considerable issue as to whether one could look through the screened window at the rear and see very much, if any, of the interior of the room. Appellant said it could not be done. The witness said it could and that she did see what she recounted. A witness, who was teaching school at the time, was asked if she had ever tried to look into the window to ascertain if she "could see anything inside," replied that she could not see "anything at all over in the corner back next to the door that goes out in Mrs. Vincent's yard." There was no objection to her testimony, though she did not fix the time and could not say whether the condition of the room was the same at the time of the occurrence and when she looked in the window.

The commonwealth's attorney in rebuttal introduced a deputy sheriff who at the "time of the trial heretofore" took the jury to the premises for observation. He said that he looked through the rear window and could see the sacks. There were introduced one member of a jury who had served "on one occasion," and two who had served at "former trials." Whether members of the same panel or not does not appear. Each of them said he could look through the window and "see those sacks from that window," one adding, "plainly." These questions were in the main objected to, the court overruling. As to the sheriff's and one juror's testimony the court admonished that they should consider it for no other purpose than contradictory, in one instance of the testimony of appellant, and in another of the school teacher.

The defense then offered the testimony of two jurors who had served during the first trial, and who had gone on an observation trip with the officers, and each asked if they looked through and could see either to the right or left in the room. The court admonished: "Don't ask him any more questions about that; make whatever avowal you want to make." Counsel avowed that if permitted to answer each would say that he "went to the store and looked in the rear window, and there was so little light in the room that they could see no sacks at any place in the room; they could see nothing but a small strip in front of the windows." When the second juror avowed, the court directed...