Prince v. Com.
| Decision Date | 20 October 1978 |
| Citation | 576 S.W.2d 244 |
| Parties | Billy Joe PRINCE a/k/a Joe Bill Prince, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
William F. Moore, Jr., R. B. Bertram, David C. Hull, Gordon T. Germain, Bertram & Bertram, Monticello, for appellant.
Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, Eddie C. Lovelace, Commonwealth Atty., 40th Judicial Dist., Albany, for appellee.
Before MARTIN, C. J., and HOWERTON and LESTER, JJ.
Billy Joe Prince was convicted of assault in the first degree and sentenced to five years in the penitentiary. From that judgment of conviction, this appeal ensues assigning as error that the verdict was unsupported by sufficient evidence, that an improper instruction was given and that the sentencing order was erroneous.
The appellant engaged in a fight with one Billy Joe Elam wherein the latter sustained multiple cuts on his legs, face, back and other areas of his body. The altercation ended with Elam in a prone position on his back on the ground and Prince throwing a flower pot in his face. Appellant was indicted for assault in the first degree in violation of KRS 508.010, tried and convicted.
At the conclusion of the evidence, the court instructed the jury under all three degrees of the offense as well as assault under extreme emotional disturbance. The jury retired and returned a verdict which, in its entirety, says:
We the jury find the defendant guilty and fix his funishment (sic) at 5 years.
/s/ Jack C. Roberts
At the end of the transcript of evidence, we note that subsequent to the last question, upon cross-examination by defendant of a prosecution rebuttal witness, the following appears:
Mr. Lovelace: The Commonwealth rests, your Honor.
(The Court admonished the jury and adjourned for lunch)
(The Court instructed the jury)
There is no transcript of the closing arguments, nothing to show that the jury was polled or discharged and no record of any post verdict motions or objections, if such had been made. The trial concluded on November 18, 1977, and on the same day, the court entered a form criminal trial order and jury verdict. The formal judgment was not entered until December 7, 1977, and even though appellant states, by way of brief, that he was appealing from the "judgment" of November 18th he, nevertheless, included as the single entry in his appendix the final judgment.
Appellant's notice of appeal recites that he is appealing from the "final judgment" entered on November 18, 1977. Since there was only one final judgment adverse to the appellant from which he could have appealed, we will treat the notice of appeal as having sufficiently designated the final judgment of December 7, 1977. Moreover, appellee made no motion to dismiss the appeal before this court.
On November 19, 1977, the defendant below filed a motion for a new trial wherein he assigned as two of his grounds:
2. That the Court erred in giving Instruction No. 1 because the same was not supported by competent medical evidence.
3. That the verdict of the jury is defective in that the jury failed to state the Instruction under which they found the defendant guilty.
It will be recalled that the jury made no finding as to which degree of assault they found him guilty but they set his punishment at five years. On the other hand, the trial order and the final judgment both recited that Prince had been convicted of first degree assault and imposed the five year penalty. KRS 508.010 is a Class B felony carrying with it a minimum of ten and a maximum of twenty years in the penitentiary. Although the record fails to disclose any proceedings in the trial court subsequent to the jury being instructed, we cannot say whether the verdict, which was violative of RCr 9.82(1), was objected to or not before the jury was discharged. For that matter, nothing in the transcript or record reflects that the panel was actually discharged. In any event, the error was brought to the court's attention within twenty-four hours.
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...constitutes a waiver for purposes of appeal. E.g., Foster v. Commonwealth, Ky., 507 S.W.2d 443, 445 (1974); Prince v. Commonwealth, Ky.App., 576 S.W.2d 244, 246 (1978). There are only three exceptions. The first two were established in Smith v. Crenshaw, Ky., 344 S.W.2d 393 (1961), in which......
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