Lay v. Commonwealth
| Decision Date | 10 December 1926 |
| Citation | 217 Ky. 99 |
| Parties | Lay v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law — Defendant Being Tried Second Time was Bound to Call Attention to Failure to File Mandate of Appellate Court Allowing Second Trial. — If defendant was tried a second time without mandate from appellate court allowing second trial being filed, he should have called trial court's attention to the matter.
2. Criminal Law — Failure to File Mandate of Appellate Court Allowing New Trial Must Affirmatively Appear to be Basis for Claim of Error in Second Trial. — Trial of defendant a second time without filing mandate of appellate court granting second trial, when alleged as error, must affirmatively appear from the record; every presumption being in favor of decision of trial court.
3. Criminal Law — After Appellate Court's Judgment Granting New Trial Became Final and its Mandate Issued, Trial Court has Jurisdiction, and Failure to File Mandate would Not Affect Subsequent Proceedings. — When judgment of appellate court granting new trial became final and its mandate issued, trial court had jurisdiction, and failure to file mandate would be a mere irregularity not affecting validity of subsequent proceedings.
4. Criminal Law — Error in Admitting Testimony in Rebuttal, which was Substantive Evidence, Held Harmless. — Admitting statements of defendant contrary to his denial thereof which were substantive evidence in rebuttal evidence and which should have been introduced in chief held harmless error, court having discretion to admit testimony out of regular order.
5. Criminal Law — Failure to Admonish Jury of Purpose for which Evidence which was Substantive as Well as Impeaching was Admitted Held Not Error. — Failure to admonish jury of purpose for which evidence was submitted in rebuttal held not error, where evidence was substantive and not introduced solely to contradict defendant.
6. Criminal Law — Misconduct of Attorney Assisting Commonwealth is Not Available as Error on Appeal, when Not in Bill of Exceptions. — Alleged misconduct of attorney employed to assist Commonwealth, not embodied in bill of exceptions, is not available as error on appeal.
7. Criminal Law — When Not Made Ground for New Trial, Misconduct in Examining Witnesses Cannot be Considered by Reviewing Court. — Misconduct of attorney assisting Commonwealth during examination of witnesses cannot be considered by reviewing court, when not made part of grounds for new trial.
8. Criminal Law — Conviction is Not to be Reversed Because Jury Believed One Set of Witnesses Rather than Another. — Court of Appeals cannot reverse conviction merely because jury believed one set of witnesses rather than another.
Appeal from Whitley Circuit Court.
HENRY C. GILLIS, J.C. BIRD, B.B. SNYDER and STEPHENS & STEELY for appellant.
FRANK E. DAUGHERTY, Attorney General, and G.D. LITSEY, Assistant Attorney General, for appellee.
Affirming.
The appellant, whom we shall refer to as the defendant, seeks by this appeal to reverse a judgment imposing upon him seven years' confinement in the penitentiary for manslaughter. We shall make no special statement of the facts as this is a second appeal and the facts will appear in Lay v. Com., 186 Ky. 163, 216 S.W. 123. The defendant was first convicted in July, 1919; his motion for a new trial was overruled, and he appealed to this court. We reversed the judgment, awarded him a new trial, and issued a mandate to that effect. The trial court has given him a new trial, and the defendant now says this was erroneously done, without the mandate being filed with the trial court. However, it does not affirmatively appear from the record defendant has brought us that this happened. The partial record he has brought us is silent upon the matter. We are not permitted to guess at what happened. If the court did try the defendant without the mandate being filed, he should have called the trial court's attention to the matter, and given that court an opportunity to get its record right.
"Every presumption is in favor of the decision of the trial court, and in order to warrant a reversal, error must affirmatively appear from the record." Oakes v. Oakes, 204 Ky. 298, 264 S.W. 752.
At all events, defendant can not complain, for he was asking for a new trial and that is what he got. It may be said the trial court had no jurisdiction of this matter after the appeal was taken, and that the defendant can not, by submitting to trial, confer jurisdiction. That is true, but when this court's judgment became final and our mandate issued, that gave the trial court jurisdiction and the failure to file the mandate, if it was not filed, was a mere irregularity not affecting the validity of subsequent proceedings. See Judson v. Gray, 17 How. Pr. (N.Y.) 289; Brooks v. Brooks, 16 S.C. 621.
In the opinion in the case of Foster v. Jordan, 54 Miss. 509, we find:
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