Nelson v. Commonwealth

• Citation: 175 S.W.2d 132,295 Ky. 641
• Parties: NELSON v. COMMONWEALTH.
• Decision Date: 03 November 1943
• Court: Court of Appeals of Kentucky

175 S.W.2d 132

295 Ky. 641

NELSON v. COMMONWEALTH.

Court of Appeals of Kentucky

November 3, 1943

Appeal from Circuit Court, McCreary County; Flem D. Sampson, Judge.

Ray Nelson was convicted of murder and sentenced to death, and he appeals.

Reversed with directions.

J. C Bird, of Williamsburg, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

REES Justice.

This appeal is from a conviction of murder and sentence of death.

The appellant, Ray Nelson, was tried at a special term of the McCreary circuit court, and the jurisdiction of the court to try the case is questioned because, as claimed by appellant the order and notice calling the special term did not give the style of this case as one of the cases to be tried. The method of selecting the jury also is questioned, but the only ground relied on for reversal of the judgment which we deem worthy of consideration is the alleged error of the court in overruling the defendant's motion for a continuance.

The accused was indicted jointly with three others for the murder of Anderson Barnett. The indictment charged that Ray Nelson John Lewis New, James Chester Inman, and Pascal Foust conspired to rob Anderson Barnett, and in pursuance of the conspiracy and while it existed went to the home and storehouse of Barnett and shot and killed him during an attempted robbery. Nelson was charged with the actual shooting and the others with aiding and abetting him. Appellant was 18 years of age when the indictment was returned. The crime was committed on May 30, 1943, and appellant and his three associates were arrested on the same day and placed in the McCreary county jail, where they remained until the day of the trial. The indictment was returned about 2 p.m. on Monday, June 14, 1943, the accused were arraigned and entered a plea of not guilty, and the case was set for trial on Wednesday, June 16, 1943. Appellant employed an attorney on the day the indictment was returned. On the day the case was set for trial the defendants New, Inman, and Foust moved for separate trials, the court granted a severance, and the Commonwealth elected to try Nelson. He filed a motion for a continuance until the next regular term of the court in August, and the motion was overruled. In support of his motion he filed his own affidavit and the affidavit of his attorney. In his affidavit he stated that he "was arrested on the morning of May 30, 1943, being the same morning of the alleged offense for which he is indicted; that he was immediately incarcerated in the jail of McCreary County where he has been continuously confined from said time until the present time; that in the meantime there was no examination of the crime with which he was and is charged until an examination and investigation of same by the grand jury of McCreary County on Monday, June 14, 1943; that the grand jury of McCreary County on Monday, June 14, 1943, about the hour of 2 o'clock P. M., returned into open court the indictment herein; that the court immediately thereafter set this case for trial on Wednesday, June 16, 1943, thereby giving this defendant approximately 44 hours to prepare for trial, which time included two nights." The attorney in his affidavit, after setting out the facts contained in his client's affidavit, stated that public sentiment in McCreary county was so prejudiced against defendant and those indicted with him that it was impossible for him to have a fair and impartial trial at that time even with a jury from another county. The attorney's affidavit concluded: "The time between the returning of the indictment herein and the time set for the trial of this case is not sufficient time for an attorney to prepare this case or any case of such importance for trial with justice to his client." The following is the bare, stark outline of subsequent proceedings as disclosed by the clerk's transcript:

"No evidence, whatever, was introduced by either side, and the following was all the proceedings had upon the said trial, to-wit:

"After the jury had been empanelled and sworn to try the case, Hon. J. C. Bird, attorney for the defendant, entered a plea of not guilty and waived the arraignment of the defendant.

"Whereupon, Honorable Guy Dickenson, Attorney for the Commonwealth, read the indictment to the jury. At this point Honorable J. C. Bird, Attorney for the defendant, stated to the court and jury as follows:

"'The defendant, Ray Nelson, now wishes to withdraw his plea of not guilty and enter a plea of guilty, and throw himself on the mercy of the court and jury."'

The court then asked the defendant: "What is your plea?" and he answered: "Guilty." The court then instructed the jury to find the defendant guilty and to fix his punishment at death or by confinement in the state penitentiary for life in their discretion. The jury retired and later returned a verdict finding the defendant guilty and fixing his punishment at death.

The constitutional right of one charged with the commission of a crime to be represented by counsel necessarily includes time for adequate preparation. The right to be represented by...