Rammage v. Kendall

• Decision Date: 21 January 1916
• Parties: RAMMAGE v. KENDALL ET AL.
• Court: Kentucky Court of Appeals

181 S.W. 631

168 Ky. 26

RAMMAGE v. KENDALL ET AL.

Court of Appeals of Kentucky.

January 21, 1916

Appeal from Circuit Court, Livingston County.

Action by Clyde Rammage against C. C. Kendall and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Berry &amp Grassham, of Paducah, for appellant.

Charles Ferguson, of Smithland, and A. C. Moore, of Marion, for appellees.

HURT J.

The appellant, Clyde Rammage, was called to testify as a witness in an examining trial of a young man who was charged with the crime of seduction, and which trial was being held before the appellee Kendall, as the judge of the county court. In the testimony which he gave upon his examination as a witness by the attorney for the accused he stated that he had had sexual intercourse with the young woman who was alleged to have been seduced by the accused upon two different occasions, each of which occurred more than one year previous to the time of the giving of his testimony. According to the appellant and a number of witnesses whom he introduced, when the examination in chief had been concluded, and he was turned over to the county attornew for cross-examination, the county attorney says to him: "You don't mean to say that you had sexual intercourse with this woman?" He answered that he did. The county attorney then says: "Will you enter a plea of guilty to this court?" The appellant says "No; I am guilty of doing what I said I did, but I am not before the court." The county attorney then, in a very boisterous tone and manner, demanded to know if he was not going to enter a plea of guilty, and repeated the question two or three times, and the appellant continued to insist that he was not upon trial. The appellant then turned to the appellee, who was presiding upon the trial, and asked for information, saying that he did not understand the question, and that "I am no lawyer and do not understand what he wants." According to other witnesses, the appellant answered the repeated demands of the county attorney to know if he pleaded guilty by saying: "I am guilty of doing what I said I did, but I am not on trial." "I am not on trial. If you want to try me get out your papers." When the appellant appealed to the appellee for information, the appellee directed him to answer, and said that the county attorney wanted to know if he pleaded guilty to fornication. When appellant said that he was guilty of what he said that he had done, then the county attorney says: "You say you are guilty, do you?" Then, addressing the appellee, the county attorney says: "Fine him $50; give him the limit." In the meantime the attorney who was representing the accused upon the trial took a hand and protested that appellee had no authority to impose a fine upon appellant, that he was not upon trial, had not been arrested nor charged with any offense, and that a prosecution for the acts of fornication to which appellant had testified was barred by the statute of limitations, and that, if it was proposed to try the appellant, to issue the proper papers, and he would defend him, and advised the appellant not to answer the demand of the county attorney to know if he pleaded guilty to fornication. The appellee then, addressing the appellant, said, "I will fine you $50," and then directed him to take a seat to one side in the room. Appellant sat at the place designated for about three hours, when the appellee delivered witness to the jailer of the county, directing him to commit appellant to jail in default of his paying off and satisfying the fine and costs or replevying same. The appellant was committed to jail, and remained there for several hours, when he executed an appeal bond and obtained a supersedeas to issue and got out of jail. The appellee, as though he was holding a quarterly court, entered a judgment in favor of the commonwealth against appellant for the fine and costs upon the records of the quarterly court, and this judgment was reversed and the appeal dismissed upon the trial of the appeal by the circuit court.

The appellee Kendall testified, in substance, that appellant, when being cross-examined as a witness, said that he had intercourse with the woman twice in January, March, February, or April, and the county attorney then asked him "if he acknowledged he had committed the crime of fornication, and he said he didn't understand the question, and Ferguson [county attorney] asked him again, and he still said he didn't understand the question, and appealed to me then to put the question to him so he could understand it. Then I told him the best I could, and told him to answer the question." Appellee further testified as follows:

"Well, after I told him what it was, he said he would acknowledge to it, to the crime of fornication, and Mr. Wilson put in and says, 'You are not on trial, and you can't try this man; you can't try him, because he is not under arrest and there is no warrant for him;' and I says, 'Mr. Wilson, he has acknowledged to the crime of fornication, and I will assess the fine on him;' and Mr. Wilson says, 'You can't try this man; he is not on trial, and you can't assess a fine against him.' I says, 'I will; he has owned to it, and I will assess the fine on him;' and Mr. Wilson says, 'If you fine this man, I will show you what I will do for you;' and there was never any demand for this man for a trial at all; he never asked for it; this man didn't call on me for a trial. Q. Did he or not call for a jury? A. No, sir; and didn't ask me for a trial, at all. Mr. Wilson was complaining, though, said he wasn't on trial all the time. Q. I will ask you to state why you assessed the fine against him. A. Well, sir, the reason I assessed the fine the statute says whoever commits fornication or adultery shall be fined $20 to $50. Ferguson suggested that I assess the fine at $50. Q. What, if anything, had Mr. Rammage said that caused you to assess the fine against him? A. Hadn't said nothing, only acknowledged to fornication; he never denied it at all. Q. Now, by way of refreshing your recollection, Judge, I will ask you if Mr. Rammage didn't use the language, after you had made the explanation to him, 'I do plead guilty to the crime of fornication'? A. Yes, sir; he did."

The appellee further stated that no one said anything about the acts of fornication being barred by the statute of limitations, and that he did not think of it.

The county attorney testified, in substance, that after asking the appellant two or three times if he meant, in his testimony, to tell the court that he was guilty of fornication and appellant had answered evasively, and said that he was guilty of what he said he did, he then said to him, "I tell you now I don't care whether you plead guilty or do not plead guilty, but I want to know whether or not you would enter the plea of guilty in this court to the crime of fornication," and he turned to the judge and said something about not understanding, Mr. Wilson making a great deal of noise at the time, and the judge made some explanation, and asked him if he would enter a plea of guilty to the crime, and the way he answered, as I remember, he says, "Yes; I do plead guilty."

Other witnesses to a greater or less extent corroborated the statements of appellee and the county attorney.

The appellant brought this suit against appellee and the sureties in his official bond, alleging that, under color of his office as county judge, the appellee maliciously, wantonly, without cause, and without the appellant being brought before him upon a warrant, and when he had no jurisdiction of appellant or the subject-matter, imposed the fine upon him and gave the order for his imprisonment, and prayed a judgment against appellees for the sum of $5,000 in damages. By agreement between the parties in the court below it was agreed that any judgment against the appellee Kendall should be rendered against the other defendants, who were the sureties in his official bond, and hence in this opinion only the appellee Kendall is referred to.

The appellee denied the allegations of malice, wantonness, and want of cause and want of jurisdiction, and pleaded that the appellant voluntarily appeared before him, entered his appearance to the accusation of fornication and a plea of guilty to it, and that he imposed the fine and gave the order for his imprisonment, as it was his duty, and in all of which he acted from the purest of motives. The affirmative allegations of the answer were controverted.

At the conclusion of all the evidence the appellant offered an instruction by which the jury was, in substance, directed to find for the appellant such in damages as would compensate him for any humiliation he may have undergone, or for any physical or mental pain or anguish suffered by him by reason of him being taken charge of by the appellee, committed to jail, and his imprisonment in the jail, not exceeding the sum claimed in the petition. To the giving of this instruction the appellee objected, and the court sustained the...