Sizemore v. Com.
| Decision Date | 16 October 1953 |
| Parties | SIZEMORE v. COMMONWEALTH. |
| Court | United States State Supreme Court — District of Kentucky |
S. M. Ward, Don A. Ward, Hazard, for appellant.
Hon. J. D. Buckman, Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.
Tommie Sizemore and John Stevens were jointly indicted on February 12, 1953, by the Clay County grand jury, each charged with the crime of willfully exploding dynamite or other explosive substance within and under a dwelling house in violation of KRS 433.460. A severance having been granted, the Commonwealth elected to try Sizemore who was convicted and sentenced to the penitentiary for two years.
This appeal urges two grounds for reversal of the judgment entered: First, that the indictment on which the conviction is based is void because the Clay County grand jury was not legally in session when it was returned; and second, that the trial court did not submit to the jury the whole law of the case. We shall consider these grounds in the order stated.
Five days after the indictment first above mentioned was returned, or on February 17th, designated the eighth day of the February term in the caption of the order book, an order was entered by the Clay Circuit Court, which stated that the grand jury would not be able to complete their work on that day and directed an adjournment of the session until the following Tuesday, February 24th, at which time they were to reconvene for an extended period of three days. The grand jury did not actually reconvene, however, until February 26th, or nine days later. An order entered on this date recited that no court had been in session since February 12th, due to the illness of the circuit judge, and that the above indictment would be passed until Monday, March 2nd, at which time Sizemore and Stevens would be arraigned.
On March 2nd Sizemore and Stevens were brought before the court for arraignment. A demurrer to the indictment and a motion to quash were entered and each was sustained. The case was then, and we quote, 'referred to the present grand jury which is now in session.' On the same day, the grand jury returned a second indictment, accusing the two men in similar language with the same offense. Appellant was again brought before the court for arraignment, whereupon he moved that the court release him from custody on the ground that the second indictment was void, and he further requested a continuance. Both motions were overruled and the case was set for trial on March 5, 1953. On the date just mentioned, Sizemore moved for a change of venue. This motion the court sustained, transferring the case to the Jackson Circuit Court and assigning it for trial in that court on March 12th. On the day set, the trial was had with the result we have heretofore mentioned.
KRS 29.240 provides, in part, that a grand jury shall not remain in session longer than six days at any regular term of court, but that, if the business before the grand jury requires it, the court may extend the session for a period of not more than three days longer. In extending a grand jury session, the court must set forth the reason in an order recorded in the proper book. In applying this statutory provision to the facts we have outlined appellant advances a twofold contention. In the first place, he maintains that the order of February 17th, extending the session for a three-day period, was entered, as it indicates on its face, on the eighth day of the term, with the result, he claims, that the order was void because it was made two days after the expiration of the regular six-day session. But, conceding the order extending the session may in fact be valid, he then insists that the grand jury could not have been legally in session on March 2nd when appellant was reindicted, for the reason, he argues, that the extra three days of the extended session, which was set to begin and did begin on February 24th, had elapsed before the second indictment was returned, and, as a consequence, the indictment returned against him is void because it was entered after the session had terminated.
Appellant's argument presupposes that a grand jury, in session during a regular term or an extension thereof, must sit on consecutive days with the result that those days during which such a jury might be duly and regularly adjourned must nevertheless be counted as a part of the session. Suffice it to say, this contention is not and cannot be supported legally or logically, and we reject it without further discussion.
Moreover, the record before us furnishes no information as to whether the order of February 17th was entered after the six-day grand jury session had lawfully terminated or whether the second indictment was returned after the three-day extension thereof had expired. Under the circumstances we must assume the...
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