Penman v. Commonwealth

• Decision Date: 20 January 1911
• Citation: 141 Ky. 660,133 S.W. 540
• Parties: PENMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

133 S.W. 540

141 Ky. 660

PENMAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 20, 1911

Appeal from Circuit Court, Lincoln County.

Shay Penman was convicted of crime, and he appeals. Affirmed.

R. H Tomlinson and J. S. Owsley, Jr., for appellant.

James Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

A jury found the appellant, a man about 35 years of age, guilty of the crime of rape committed upon a child under the age of 12 years, and fixed his punishment at death. From the judgment upon this verdict he prosecutes this appeal, and assigns as the chief grounds for a reversal the failure of the court to grant a continuance and a change of venue, but also insisting that the call for the special term and the trial were irregular. It is not necessary to the proper understanding of the grounds relied upon for reversal that we should relate the revolting details of the crime. It is enough to say that the evidence was sufficient to justify the verdict. The appellant was guilty of the crime charged against him and for which he was convicted, or he was innocent of it and all of its degrees. There was really no place in the case for an instruction upon the subject of an attempt to commit a rape or other degrees of the crime although the trial judge in an abundance of caution and in order that the accused might have the benefit of any possible doubt as to his guilt of the crime of rape, instructed the jury that they might find him guilty of an attempt to commit a rape, the punishment for which is confinement in the penitentiary for not less than 5 nor more than 20 years. As the appellant, the only witness in his behalf, denied absolutely that he assaulted the prosecuting witness in any manner whatever, and the evidence for the commonwealth showed that he had committed the crime charged, it is manifest that the trial court need not have instructed the jury upon the subject of an attempt to commit a rape, and could not with propriety have given an instruction upon any other degree of the crime. The crime was committed on the morning of September 3, 1910, and on that day and within a few hours the appellant who was then and had for many years been a resident of Lincoln county, Ky. was arrested and placed in the Stanford jail, where he remained until the afternoon of that day, when he was taken to Lebanon, Ky. some 30 miles distant and lodged in the jail at that place. On the 5th of September he was taken from the Lebanon jail to the city of Louisville and there placed in jail, where he remained until September 27th, when he was brought back to Stanford for trial. On September 15th the circuit judge of the district in the manner provided by law called a special term of the Lincoln circuit court for September 28th, for the purpose of investigating through the grand jury the crime charged against the appellant, and for the purpose of trying him under any indictment that might be returned against him, and a copy of the notice calling the special term was delivered to appellant by the jailer of Jefferson county on September 15th. When the special term convened on September 28th, a grand jury was impaneled, and on the same day returned the indictment under which the appellant was tried, but his trial was not commenced until September 30th, nor concluded until October 1st. When the indictment was returned on September 28th, the appellant was brought into court, and after entering a plea of not guilty, moved the court to quash the indictment upon the ground that the call for the special term of court to indict and try the appellant "was irregular and not according to law." Counsel for appellant in their brief say: "Our contention was and is that said call was irregular and not according to law, for the reason that it expressly shows a predetermination on the part of the court to try appellant at said term, he never having been indicted, regardless of the fact that he might have legal grounds for a continuance." But a careful reading of the notice calling the special term fails to show any purpose upon the part of the court to force the appellant into trial at the special term if he presented sufficient reasons to justify the court in continuing the prosecution. Nor was the call in any respect irregular. The statute provides that "whenever it is necessary to transact the business, a special term may be held in any county," and also imposes upon the judge calling a special term the duty of specifying in the notice or order "the style of each case to be tried or in which any motion, order, or judgment may be made or entered." It also confers upon the judge authority to summon a grand jury at a special term to inquire into any violations of the criminal or penal laws. And so, the judge of the district had ample authority to impanel a grand jury to investigate the charge against the appellant, and to try him for the crime charged in the indictment. It is true that when this special term was called, there was no prosecution pending against the appellant. But the fact that there is no prosecution pending when the special term is called does not deprive the judge of the authority to call a special term and impanel a grand jury at such term, or to try thereat any person that the grand jury may indict. The requirement that the notice calling the special term shall designate the business to be disposed of was incorporated only for the purpose of informing persons having cases pending in court that they would be taken up and disposed of at the special term. Except for this notice, litigants and attorneys might not be prepared to go into the trial of cases at the special term. But this provision does not limit the court to the trial of pending prosecutions. Any criminal case that can be heard and disposed of at a regular term can be heard and disposed of at a special term. The court has the same power and authority at a special term to impanel a grand

jury and dispose of indictments returned by it, as it has to impanel a grand jury at a regular term and dispose of the indictments returned by it at such term. It was, however, eminently proper for the court to give notice of this special term to appellant, and the fact that his case would be then taken up, so that he might have opportunity to prepare a defense, although the failure to give such notice would not in the absence of any other reason constitute error. Fitzgerald v. Commonwealth, 98 S.W. 319, 30 Ky. Law Rep. 349; White v. Commonwealth, 120 Ky. 178, 85 S.W. 753, 27 Ky. Law Rep. 561.

The affidavit for a continuance set out the date the crime was committed, and the time of appellant's arrest, and removal to the Lebanon jail, and from thence to the Jefferson county jail. And further set out that: "He has never been given an examining trial on this charge, and has had no opportunity of knowing what...