Mauk v. Commonwealth
| Decision Date | 20 April 1937 |
| Citation | 104 S.W.2d 955,268 Ky. 237 |
| Parties | MAUK et al. v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Elliott County.
Ernest Mauk and Luke Mauk were convicted of the crime of unlawfully and feloniously confederating and banding together with others for purpose of molesting, injuring, and destroying the real and personal property and person of another, and they appeal.
Judgments reversed for further proceedings.
Waugh & Howerton, of Ashland, for appellants.
B. M Vincent, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.
On the night of June 3, 1936, Mr. and Mrs. J. E. Whitt, who reside in Elliott county near the Carter county line, were awakened by the barking of dogs and other noises. They stepped out on the porch, and saw what appeared to be a bundle of burning rags near the side of the house. The bundle contained ten sticks of dynamite which exploded, damaging the house and injuring Mr. and Mrs. Whitt. On July 20, 1936, the grand jury of Elliott county returned an indictment against appellants Ernest Mauk and Luke Mauk, and four others, charging them with the crime of unlawfully and feloniously confederating and banding themselves together for the purpose of dynamiting the home of J. E. Whitt. On July 30, 1936, a demurrer to the indictment was sustained, and, on the same day, the grand jury returned an indictment against Ernest Mauk, Luke Mauk, Virgil Mauk, and Clarence Mauk, charging them with the crime of unlawfully and feloniously confederating and banding themselves together for the purpose of molesting, injuring, and destroying the real and personal property and person of J. E. Whitt. Ernest Mauk and Luke Mauk were tried together, and both were convicted. Luke Mauk was sentenced to a term of one year in the state reformatory, and Ernest Mauk, who was fifteen years of age, was ordered to be confined in the state school of reform at Greendale for a period of five years.
The appellants are brothers, and reside in Carter county about five miles from the Whitt home. Virgil Mauk and Clarence Mauk, who were jointly indicted with them, are brothers, and reside with their mother in Elliott county about one mile from the Whitt home. Their relationship to appellants is not clear, but they are either second or third cousins. Virgil Mauk had been indicted for the murder of James Parsons, and had been a fugitive from justice, but had returned to his mother's home. There was evidence that J. E. Whitt had threatened to inform the officers of his presence there and that this incensed Virgil Mauk. This undoubtedly was the motive for the crime. Virgil Mauk had not been apprehended at the time of the trial.
Clarence Mauk, who was introduced as a witness by the Commonwealth, testified that on the night of June 3, 1936, he, Virgil, Ernest, and Luke left his mother's home with ten sticks of dynamite, which was wrapped in two bundles and carried by Virgil and Luke. They walked to a point near the Whitt home where he and Ernest waited while Luke and Virgil went to the house. Shortly after they left, he heard the explosion. Ernest testified that he went to the Whitt home with Clarence, who took with him ten sticks of dynamite. When he ascertained that Clarence intended to explode the dynamite at the Whitt home, he ran away. He stated that neither Virgil nor Luke was present.
A reversal of the judgment as to Ernest Mauk is sought on the ground that the circuit court was without jurisdiction to try him, since no proceeding had been had in the juvenile court, as required by section 331e-1 et seq. of the Kentucky Statutes, and Luke Mauk insists that he was entitled to a directed verdict in his favor, as there was no evidence corroborating the testimony of the accomplice, Clarence Mauk.
The appellant Ernest Mauk objected to the jurisdiction of the court, and his objection was overruled. A paper dated July 28, 1936, signed by the county judge, was filed, in which it was stated that he had examined Ernest Mauk on that day and found that he would be sixteen years of age in August, 1936 and he recommended that he be prosecuted in the circuit court for the crime for which he had been indicted. It is apparent from the record that the procedure prescribed by section 331e-4 et seq. of the Kentucky Statutes, for the disposition of juvenile offenders had not been followed, and that the circuit court was without jurisdiction. Compton v. Com., 194 Ky. 429, 240 S.W. 36; White & Deaton v. Com., 242 Ky. 736, 47 S.W.2d 548; Grise v. Com., 245 Ky. 220, 53 S.W.2d 362; Watson v. Com., 247 Ky. 336, 57 S.W.2d 39; Com. v. McIntosh, 257 Ky. 465, 78 S.W.2d 320; Edwards v. Com., 264 Ky. 4, 94 S.W.2d 25. The Attorney General frankly concedes...
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