Lovelace v. Commonwealth
| Decision Date | 04 February 1941 |
| Citation | 285 Ky. 326 |
| Parties | Lovelace v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
3. Criminal Law. — Where trial judge did not deny probation in exercise of discretion which statute vested in him but did so upon ground that statute was unconstitutional, the validity of the statute was before the Court of Appeals for decision (Ky. Stats., sec. 979b-5 et seq.).
4. Constitutional Law. — Every reasonable presumption of constitutionality of an act of Legislature is to be indulged.
5. Constitutional Law. — In absence of constitutional restraint, Legislature is omnipotent in dealing with matters of legislation and the courts with matters of judicial nature.
6. Criminal Law. — In determining constitutionality of statute authorizing court to postpone sentence of person convicted and to place him on probation, "probation" relates to action taken before prison door is closed while "parole" relates to action taken after door has been closed and a "parole" partakes of the nature of a "pardon" since it suspends the execution of a penalty already imposed (Ky. Stats., secs. 979b-5 et seq., 1126a-1 et seq.; Constitution, secs. 77, 109).
7. Criminal Law. — "Probation" is a system of dealing chiefly with young persons found guilty of crimes of lesser gravity, and especially the first offenders, who instead of being sent to prison or otherwise punished, are released on suspended sentence during good behavior and placed under supervision of a probation officer, who acts as a friend and advisor, but who, in case of failure of probationer to fulfill terms of his probation, can report him back to court for execution of sentence originally imposed.
8. Criminal Law. — In ordinary criminal legal parlance "judgment" and "sentence" have the same meaning and under Kentucky procedure, pronouncing judgment is sentencing the prisoner although it is common practice to enter the judgment on the order book and later to have the defendant brought into court and sentenced formally (Criminal Code of Practice, sec. 283 et seq.).
9. Criminal Law. — In determining constitutionality of statute authorizing court to postpone sentence of person convicted and to place him on probation, there is a material difference in status of a defendant following "verdict" of guilt and his status after a final "judgment" has been entered and sentence pronounced since "verdict" is but the basis of the judgment and is not effective until there is a judgment and its return and acceptance by court are but interlocutory steps toward final disposition (Ky. Stats., secs. 979b-5 et seq., 1126a-1 et seq.; Constitution, secs. 77, 109).
10. Criminal Law. — The term of a person convicted of crime does not begin before rendition of final judgment (Criminal Code of Practice, sec. 283 et seq.).
11. Criminal Law. — Though a defendant's motion for new trial be overruled, he cannot prosecute an appeal from conviction without a judgment, and if judgment be entered at a later term of court, it is effective as of date of its entry and time allowed by law for perfecting an appeal is calculated from that date (Criminal Code of Practice, sec. 283 et seq.).
12. Criminal Law. — Prosecution in trial court is not "final" until there is a judgment entered of record, and it is not necessary that the judgment be rendered at the same time, but if justifiable cause exists or delay is authorized by statute, an indefinite postponement of sentence does not deprive court of jurisdiction (Criminal Code of Practice, sec. 283 et seq.).
13. Criminal Law. — The Legislature having power to make laws that declare what are criminal offenses and define processes by which laws are enforced have the power to modify and provide for abatement or suspension.
14. Criminal Law. — Statute authorizing court to postpone sentence of person convicted and to place him on probation is constitutional (Ky. Stats., sec. 979b-5 et seq.; Constitution, secs. 15, 77, 109).
Appeal from Lee Circuit Court.
E.B. Rose, Leebern Allen, C.E. Tyree and Beverly P. White for appellant.
Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
Before Charles L. Seale, Judge.
Reversing.
Maynard Lovelace, a deputy sheriff of Lee County, killed Jake Brandenburg while endeavoring to arrest him on November 21, 1936. The next ensuing grand jury declined to return an indictment against Lovelace. A subsequent grand jury indicted him and he was convicted thereunder of voluntary manslaughter and sentenced to five years' imprisonment. We reversed the judgment because there had been no order re-submitting the case to the grand jury. Lovelace v. Commonwealth, 272 Ky. 52, 113 S.W. (2d) 853. Thereafter the circuit judge was of opinion that the court had lost control of the case and was without authority to re-submit it. We certified the law to be that it did have such power. Commonwealth v. Lovelace, 276 Ky. 796, 125 S.W. (2d) 730. Later an indictment was duly returned and the defendant was convicted under it of voluntary manslaughter and sentenced to two years' imprisonment. He appeals from that judgment.
Having a warrant of arrest to serve upon a certain man, Lovelace went to a saloon conducted by Joe Stamper near the railroad station in Beattyville. It was a small room in which 25 or 30 men were gathered. The deceased, Jake Brandenburg, was drunk and boisterous. According to Edward Couch and Bernie Fox, the deceased had not been disorderly and the officer without justification of any sort proceeded to assault and then shoot Brandenburg deliberately while he was standing with his arms at his side and offering no resistance. Not only is their testimony contradicted by all the other many witnesses, but their reputation for truth and veracity was proven to be bad. Their testimony is not worthy of credence. Other witnesses presented by the commonwealth testified in substance that the officer had told the deceased that he was under arrest because he was drunk; that he had insisted that he was not so drunk as to need being arrested; and asked to be permitted to go home with his brother, whom he was expecting soon, and then that the officer grabbed and began striking him with his pistol. Brandenburg was not armed and endeavored only to ward off the blows and did not strike the officer at all. In the melee both went down to the floor and Lovelace then shot Brandenburg, the bullet entering his cheek and coming out the top of his head.
The defendant testified that the deceased was drunk, cursing and disorderly and had refused to quiet down upon the requests of the proprietor of the saloon and himself. Brandenburg persisted in his disorderliness and boasted that Lovelace would not take him anywhere. The officer told him he was under arrest and took hold of him with the request that he "come on." Brandenburg pulled loose and struck the officer with his fist two or three times, and, according to Lovelace, only when he ran his hand to his pocket did he strike him with his pistol. Then Brandenburg grabbed a bottle and struck Lovelace over the head with it. He had him down almost on his knees holding him when Lovelace fired his pistol. While he was down with Jake Brandenburg hitting him, Lovelace was struck from behind by John Brandenburg, a brother of the deceased. While the defendant's testimony as to just when this occurred is not clear, that of other witnesses indicates that it was before he shot Jake Brandenburg. The evidence that the deceased struck Lovelace over the head with a beer bottle is overwhelming. Several witnesses made a stronger case of self-defense and justification than did the defendant himself. It is agreed by all that immediately after the shooting John Brandenburg attacked Lovelace with a metal stool as he was leaving the building.
A number of witnesses testified that the deceased was a strong man and violent when drinking, and that the defendant is a man of good reputation and standing. While the evidence presented by the commonwealth was sufficient to take the case to the jury, it is difficult to understand how any fair-minded jury could have accepted it and disregarded the preponderating evidence proving that the officer was justified in what he did.
The court confined the self-defense instruction to the right to defend against the attack and assault of the deceased only. We are of opinion that the evidence justified the inclusion of the accused's right to defend himself against both the deceased and his brother, John Brandenburg, and that the omission is a prejudicial error.
The instruction submitting the right of the defendant as a peace officer follows that approved in Keeton v. Commonwealth, 108 S.W. 315, 32 Ky. Law Rep. 1164, published as Section 878 of Stanley's Instructions to Juries. We do not think that form applicable to this state of facts, for in that case the officer was only trying to stop boisterous conduct, while here there was a clear case of an arrest for public drunkenness and breach of the peace, committed in the officer's presence, and a forcible resistance after arrest. Giles v. Commonwealth, 266 Ky. 475, 99 S.W. (2d) 455. Applicable to the facts in relation to the officer's right to shoot and kill the deceased is the instruction prepared in Stevens v. Commonwealth, 124 Ky. 32, 98 S.W. 284, 30 Ky. Law Rep. 290 (...
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