Powers v. Commonwealth

• Decision Date: 20 January 1903
• Citation: 114 Ky. 237,71 S.W. 494
• Parties: POWERS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

71 S.W. 494

114 Ky. 237

POWERS v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 20, 1903

Appeal from circuit court, Scott county.

"Not to be officially reported."

Caleb Powers was convicted of murder, and he appealed. Reversed. Motion by the commonwealth for rehearing. Motion denied.

J. R Morton, J. C. Sims, and J. B. Finnell, for appellant T. C Campbell, R. B. Franklin, T. B. Sebree, Jno. K. Hendrick, B G. Williams, Victor F. Bradley, L. W. Arnett, T. Earl Ashbrook, and Denis Dundon, for the Commonwealth.

BURNAM C.J.

On the first day of the present January term of this court, the commonwealth of Kentucky tendered and asked permission to file a petition for rehearing in the case of the Commonwealth of Kentucky against Caleb Powers, charged with murder, which was tried and decided at the last September term of this court. The defendant, by counsel, objects to the filing of this petition, on the ground that there is no authority for such proceeding.

Appeals to this court in felony cases are regulated by section 336 of the Criminal Code, which provides as follows:

"Sec 336. An appeal may be taken by the defendant in the following manner only: (1) The appeal must be prayed during the term at which the judgment is rendered, and the prayer noted on the record in the circuit court. The appeal shall be granted as a matter of right. (2) When an appeal is prayed the court shall, if the defendant desire it, make an order that the execution of the judgment be suspended until the expiration of the period within which the defendant is required to lodge a transcript of the record in the clerk's office of the court of appeals. After the expiration of such period the judgment shall be executed unless the defendant shall have filed in the clerk's office of the court rendering the judgment, the certificate, as provided in sub-section three of this section, that the appeal has been taken, or a copy of the order of the court of appeals granting further time to lodge the transcript. (3) The appeal is taken by lodging in the clerk's office of the court of appeals within sixty days after the judgment, a certified transcript of the record. The clerk of the court of appeals shall thereupon issue a certificate that an appeal has been taken, which shall suspend the execution of the judgment until the decision upon the appeal."

"Sec. 357. Appeals in criminal cases shall take precedence over all other business of the court and be placed first upon the docket for trial.

"Sec. 358. They shall stand for trial at the first term succeeding the lodging of the transcript in the clerk's office of the court of appeals, provided, it

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