Marcum v. Com.
| Decision Date | 21 May 1965 |
| Citation | 390 S.W.2d 884 |
| Parties | Hubert L. MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
William P. Runnels, Lexington, for appellant.
Robert Matthews, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., for appellee.
This is an appeal of three cases that were tried together in the Fayette Circuit Court on separate appeals from the Lexington Police Court.
On July 7, 1960, appellant's license to operate a motor vehicle was revoked because he had been convicted of driving while intoxicated, and it has never been re-issued.
On May 10, 1963, appellant was arrested and charged with the offense of operating a motor vehicle without a license.
On May 16, 1963, appellant was again arrested and charged with operating a motor vehicle without a license and while under the influence of intoxicating liquor.
Appellant was convicted of driving without a license on May 10, 1963. He was convicted of driving without a license on May 16, 1963. He was convicted also of driving while intoxicated--second offense--on May 16, 1963.
Appellant urges as grounds for reversal that (1) there was an improper joinder of offenses and each one should have been tried separately, (2) improper testimony was admitted, and (3) no instruction concerning driving while intoxicated should have been given.
RCr. 6.18 provides:
'Two or more offenses may be charged in the same information or two or more offenses whether felonies or misdemeanors, or both, may be charged in the same indictment in a separate count for each offense, if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.'
RCr 9.12 provides that the court may order two or more indictments or informations or both to be tried together if the offenses can be joined in a single indictment or information.
It is important, however, that the offenses be of the same or similar character in order that they be properly joined for trial. It is difficult to lay down a rule by which such similarity may be recognized, and the trial court in the exercise of sound discretion should be given broad power in deciding which offenses have similar characteristics. The admissibility of evidence of other crimes in separate trials is a significant factor in determining whether joinder of crimes for trial is prejudicial. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85. On the other hand there is no prejudicial effect from joinder of crimes for trial when evidence of each crime is simple and distinct even though such evidence might not have been admissible in separate trials. This rule rests upon the assumption that a properly instructed jury can easily keep such evidence separate in their deliberations and therefore the danger of cumulative effect of evidence is substantially avoided. United States v. Crosby, C.A.N.Y., 314 F.2d 654. It appears also that time is of some importance in deciding whether offenses may be tried together. In Chambers v. United States, 112 U.S.App.D.C. 240, 301 F.2d 564, it was held that consolidation of counts arising out of three acts of housebreaking and larceny allegedly committed by the defendant on three dates within one month was proper. See also Langford v. United States, 106 U.S.App.D.C. 21, 268 F.2d 896.
We have no difficulty in deciding that the offenses for which appellant was tried were similar; in fact, the whole sequence of events and the punishment imposed could have been considered one integral crime; his driver's license was revoked because he was convicted of driving while intoxicated; he was later arrested and convicted for operating a motor vehicle without a license; less than a week later, he was again arrested for operating a car without a license and while drunk. In a way each one of the public offenses was contingent and resulted from the offense which had been previously committed. The punishment was also made more severe by statute because of the prior offense. The charges were properly tried together.
Appellant next complains that the...
To continue reading
Request your trial
-
Cobb v. Commonwealth of Kentucky
...evidence of one offense would be admissible in the trial of the other offenses. Rearick, supra, at 187. However, in Marcum v. Commonwealth, Ky., 390 S.W.2d 884, 886 (1965), our predecessor Court [T]here is no prejudicial effect from joinder of crimes for trial when evidence of each crime is......
-
Savage v. Three Rivers Med. Ctr., Nos. 2010–SC–000478–DG, 2011–SC–000348–DG.
...this rule requires a party to introduce the most authentic evidence which is within their power to present. Marcum v. Commonwealth, 390 S.W.2d 884, 886 (Ky.1965); Johnson v. Commonwealth, 231 S.W.3d 800, 805 (Ky.App.2007). Accordingly, it was Appellants' burden to produce the most authentic......
-
Brown v. Com.
...in a single indictment; the language of this rule is the same as that contained in Fed.R.Crim.P. 13. In the cases of Marcum v. Commonwealth, Ky., 390 S.W.2d 884; Schweinefuss v. Commonwealth, Ky., 395 S.W.2d 370; and Russell v. Commonwealth, Ky., 403 S.W.2d 694, the offenses concerned were ......
-
Simpson v. Commonwealth
...That said, we note that the best evidence rule largely pertains to documentary evidence, not physical evidence. See Marcum v. Commonwealth, 390 S.W.2d 884, 886 (Ky. 1965) (holding that the best evidence rule "requires one to introduce the most authentic evidence which is within the power of......