Rice v. Davis

• Citation: 366 S.W.2d 153
• Parties: Sidney RICE, Appellant, v. David L. DAVIS, Warden, Kentucky State Reformatory, LaGrange, Ky., Appellee.
• Decision Date: 22 March 1963
• Court: United States State Supreme Court — District of Kentucky

Page 153

366 S.W.2d 153

Sidney RICE, Appellant, v. David L. DAVIS, Warden, Kentucky State Reformatory, LaGrange, Ky., Appellee.

Court of Appeals of Kentucky.

March 22, 1963.

Sidney Rice, pro se.

John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., Frankfort, for appellee.

STEWART, Chief Justice.

Appellant, Sidney Rice, was convicted in the Bourbon Circuit Court of the offense of wilfully and maliciously shooting and wounding another with intent to kill, and sentenced to 20 years' imprisonment in the state reformatory at LaGrange. See KRS 435.170(1). Thereafter he filed in the Oldham Circuit Court a petition for a writ of habeas corpus. The writ was denied without a hearing and the petition was dismissed. He now appeals from the judgment entered.

Appellant's petition was supported by affidavits made by himself, his wife, his son and three persons not related to him. These affidavits were not challenged by the Commonwealth and constitute the bulk of the proof in this case. The errors and irregularities pointed up by these affidavits, if true, tend to support the proposition that certain of appellant's fundamental or constitutional rights were ignored or disallowed.

The record of appellant's trial consists of the indictment, the instructions, the verdict, a motion for, and the denial of, probation, a motion and grounds for a new trial, and an order overruling this motion and the granting of an appeal to this Court. There is no transcript of evidence. According to the statements of appellant and his affiants, he asked his attorney to obtain a court reporter and, when this person failed to do so, he requested the trial court either to provide a reporter or permit him to hire one. The trial court refused to furnish a reporter or allow him time to secure one, it is asserted.

It is possible that a bystander's bill of exceptions would have been accepted by this Court. However, it appears appellant's attorney was less than diligent in his handling of this matter since he did not undertake to prepare one. Other charges of an extremely grave nature are set forth in the affidavits which, because they are not rebutted, must be presumed to show that appellant's counsel either refused or failed to afford him adequate representation.

The instant action is an attack on a judgment and, generally speaking, habeas corpus jurisdiction will only lie where the judgment is void. See Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666. Ordinarily, in such a proceeding in this forum the only questions open to review after a conviction are whether the court had jurisdiction of the person and the offense; and whether the sentence pronounced was one authorized by law. In the absence of exceptional circumstances, habeas corpus is not to be resorted to as a substitute for an appeal or as an alternate remedy for the correction of errors either of law or fact.

However, for 'incurable, radical and fatal defects plainly and indisputably manifest of record, relief should be granted even on habeas corpus.' 39 C.J.S. Habeas Corpus § 15, pp. 444-448. Also, this same volume on the same subject on page 449 states that '* * * the use of the writ of habeas corpus has been held to extend to cases where the conviction has been in disregard of the accused's constitutional or fundamental rights which result in the absence or loss of the jurisdiction of the court, and the writ is the only effective meaans of preserving those rights.'

In state courts, the usual inquiry in proceedings of the type before us, under the older view, is limited to questions of whether the court had jurisdiction of the offense and the person of the accused. The newer view is that a judgment may be void and thereby subject to attack for certain extreme irregularities other than the lack of jurisdiction of the offense and the person after the judgment or sentence. See Annotation, 146 A.L.R. 386. Such states as Georgia, Kansas, Oklahoma, West Virginia, Pennsylvania, Nevada, and New York have recognized this rule. See same Annotation, pp. 388 to 394. Also the United States Supreme Court adheres to this principle of law. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. KRS 28.430 provides, in part:

'(1) (a) Upon any trial or proceeding if either party requests the services of the reporter, * * * the presiding judges shall direct the reporter to, and the reporter shall, take full stenographic notes of the proceedings.

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'(2) In all criminal proceedings, upon the motion of either party the court shall order the reporter to make a full and accurate transcript * * *.'

In Woods v. Commonwealth, Ky., 305 S.W.2d 935, this statutory provision was held to be a mandatory requirement and a failure of the trial court to comply therewith was reversible error. An examination of the record in the Woods case discloses that it included a bystander's bill of exceptions, signed by the appellant's attorney, narrating the evidence presented and reciting that the appellant asked for a reporter and his request was disallowed. Also in that record, in a paper entitled 'Proceedings, Jury and Verdict,' the fact was stated that the circuit court overruled the appellant's motion for a court reporter. Thus, appellant in the Woods case had some record to bring to this Court on appeal but it was deemed insufficient and it was ruled a substantial right was denied when the trial court refused to have the case reported.

In the present case, due to the lack of diligence on the part of his attorney, appellant had nothing to present to this Court in the event of an appeal, because in the absence of the transcript of evidence no error claimed to have been committed during the trial was available for review....