Sloan v. Commonwealth

• Decision Date: 20 November 1925
• Citation: 211 Ky. 318,277 S.W. 488
• Parties: SLOAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

277 S.W. 488

211 Ky. 318

SLOAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 20, 1925

Appeal from Circuit Court, Perry County.

Elisha Sloan was convicted of murder, and he appeals. Affirmed.

Duff &amp Duff, of Hazard, and H. C. Eversole, of Annville, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

DIETZMAN J.

Appellant brings this appeal from a judgment entered on a verdict of the jury finding him guilty of murder and fixing his punishment at death.

In the spring of 1924 appellant, while working in some mine contracted, from inhaling bad air, an inflammation of the lungs which seems to have gone into tuberculosis. Since then he has not done any work to amount to anything. Physically he has steadily gone backward. As to his mental condition, however, there is a contrariety of evidence. His family, including his mother and brothers, testify that he had the idea that the doctors were trying to kill him with the medicine they prescribed for him, and that he would sit and mope for hours, sometimes bursting out into hysterical weeping. On the other hand, his attorney, who was prosecuting his suit against the mine owner for his injuries alleged to have been caused by the bad air, but who did not defend him in this case, several doctors who examined him, and one or two laymen, all testify that appellant was perfectly sane and knew what he was doing. It is admitted that he had practically no education, and was very poor.

In January, 1925, Dr. Marvin Kingins became the mine doctor near where appellant lived. On the morning of the homicide appellant, while at the mine commissary, learned that the doctor was coming that afternoon to see his child, who was very ill. About 1 o'clock that day the two met in a creek hollow that led up to appellant's house. The doctor was on horseback, while appellant was on foot. They engaged in some conversation, but the eyewitnesses to the homicide were too far away to hear what they said, and, as appellant did not testify in this case, we are not advised concerning what they talked about. After a few minutes of conversation, appellant stepped around in front of the doctor's horse, pulled his pistol, and shot the doctor, who died immediately. The latter was unarmed and making no demonstration against appellant. After shooting the doctor, appellant made his way to his brother's home, and then, in company with him, went to the county seat and surrendered to the jailer.

Appellant's real defense to this charge of murder was that of insanity. On this issue, submitted to the jury under an instruction not complained of, it found against him. The evidence supports such finding. However, appellant relies for reversal on several procedural grounds which we will consider in the order he urges them. He first insists that the court was without jurisdiction to try him at the time it did. The regular November, 1924, term of the Perry circuit court expired on December 13, 1924. Before its expiration the court entered the following order:

"Owing to the crowded and congested condition of the dockets of this court, it is now ordered by the court that the regular November term, 1924, be and the same is now ordered extended for a period of 66 juridical days from the expiration of the present term; that is to say, the present term expires by operation of the law on Saturday, December 13, 1924, and the extension thereof shall begin on Monday, December 15, 1924, and continue for said 66 juridical days. And at said extension of said regular term all cases on this court's commonwealth's ordinary and equity dockets shall stand for orders and proceedings as if at a regular term provided by statute."

The court entered this order pursuant to the provisions of section 964 of the Kentucky Statutes, which reads:

"In each county of said districts, except counties having continuous session, there shall be held each year the number of terms of the circuit court provided for by law, and the term in any district may be extended, if the business requires, so that it does not interfere with any other term in the district; and whenever it is necessary to transact the business, a special term may be held in any county, either by an order entered of record at the last preceding regular term in the county or by notice signed by the judge and posted at the courthouse door of the county for ten days before the special term is held. The order or notice shall specify the day when the special term is to commence, and shall give the style of each case to be tried, or in which any motion, order or judgment may be made or entered at the special term, and no other case shall be tried, or motion, order or judgment entered therein, unless by agreement of parties. [Grand juries shall be summoned and criminal and penal causes shall be heard at but three terms, in each year, in any county, * * * unless in an emergency the court may otherwise direct; and] grand or petit juries may be summoned for any special term by direction of the judge."

Appellant insists, that, as the order extending the regular term did not specifically designate the style of any case to be taken up during the extension, there was no valid extension of such term. The cases appellant cites to support this proposition of which Toler v. Commonwealth, 94 Ky. 529, 23 S.W. 347, 15 Ky. Law. Rep. 292, is a fair sample, all deal with special terms for which, under the express provisions of the statute above quoted, cases must be designated by style before they can be taken up therein. There is no such requirement as to an extension of a regular term. This is not a new term, but only a prolongation of a term that is in session during which parties litigant and their ...