Taylor v. Commonwealth

• Decision Date: 07 December 1934
• Citation: 256 Ky. 667,76 S.W.2d 923
• Parties: TAYLOR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

76 S.W.2d 923

256 Ky. 667

TAYLOR v. COMMONWEALTH.

Court of Appeals of Kentucky

December 7, 1934

Appeal from Circuit Court, Whitley County.

John Taylor was convicted of false swearing, and he appeals.

Affirmed.

J. B Johnson, of Williamsburg, for appellant.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

THOMAS Justice.

At the regular January term, 1933, of the Whitley circuit court its grand jury indicted appellant and defendant therein, John Taylor, for false swearing, committed when he theretofore testified as a witness for defendant at the trial of a murder prosecution pending in that court of Commonwealth of Kentucky v. William Shelton. In that prosecution the homicide, with which Shelton was accused occurred at a bridge across Jellico creek, known as "Walker Mill bridge," and appellant herein testified at that trial that he and his brother, Dewey Taylor, were near that bridge and saw Shelton stab his victim under circumstances justifying him in doing so under his right of self-defense. The indictment herein avers that such testimony by appellant was corruptly, fraudulently knowingly, intentionally, and feloniously given, and all of which was false "and the said Taylor at the time he so swore knew the truth to be that he was not at or near the end of the said bridge at the said time and he knew the truth to be that he did not see the said killing." At the trial thereunder appellant (to whom we shall hereafter refer as defendant) was convicted and punished by confinement in the penitentiary for two years, and from that verdict and the judgment pronounced thereon, after his motion for a new trial was overruled, he prosecutes this appeal urging a number of grounds as alleged errors claimed to be sufficient to authorize a reversal of the judgment; but our careful consideration of the record convinces us that counsel is in error as to each of them. Such as we conclude deserve consideration will receive it as the opinion proceeds, but some of the argued grounds are so clearly immaterial as to not justify mention or consideration.

It is first insisted that defendant's motion to quash the indictment should have been sustained because it was found at a reconvened session of the grand jury in the latter part of the regular term of the court at which it was selected contrary (as contended) to the order of court recalling it and not in accordance with the present section 2251 of the 1933 Supplement to Kentucky Statutes, which is a part of chapter 64 of the Session Acts of 1932, amending and re-enacting former sections 2248 et seq. of Carroll's Kentucky Statutes. The applicable sections as so amended (sections 2249 and 2251) prescribe that "a grand jury shall be summoned at three regular terms of circuit court, unless otherwise ordered by the judge," and that it "shall not remain in session longer than six days at any regular term of court, but the court in its discretion may if the business before the grand jury requires it extend the time of the grand jury not more than three days longer. *** The court may in its discretion in case of an emergency call not more than three special sessions of the grand jury for not more than three days at a time. The court in calling a special grand jury shall set forth in an order entered on the order book of the court the reason for calling a special session of the grand jury."

The order reconvening the grand jury in this case, and at which reconvened meeting defendant was indicted, recites that the six days allotted for its regular term did not afford sufficient time to investigate a certain murder that had been committed in the county and then "recalls the grand jury for the further investigation of that case and such other cases as it sees fit to investigate to convene on Monday the 4th week of this term and to remain in session not exceeding two days." In support of this ground counsel cites a number of cases from this court relating to the trial of cases at special terms of the court when the particular case (to the trial of which objections were made) had not been included in the call of such special term, which order purported to designate each case to be tried thereat. It will at once be seen that those cases have no bearing whatever on the question here involved. The reassembling of the grand jury in this case occurred at the same term at which it was selected and impaneled, and in effect was nothing but an extension of its regular limited term of six days. It did not purport to confine the investigations of that body when reconvened to any particular matter, but, on the contrary, authorized it to investigate "such other cases as it sees fit," as well as the homicide case thereinbefore referred to. It will, therefore, be seen that this objection is wholly unfounded.

It is next insisted that the court erred in the admission of incompetent testimony offered by the commonwealth wherein (a) Dewey Taylor was asked and affirmatively answered that defendant, John Taylor, told him (Dewey) that Dick Shelton, a relative of the defendant in the indictment of Wm. Shelton, during the trial of which the alleged false testimony is charged to have been given, had promised to credit him (defendant) with $30 on an indebtedness for purchase money of land if he (defendant) would give the alleged false testimony. As argued in brief, the objection to that testimony is that it did not fix the time and place when defendant told the witness the fact testified to by him, and counsel asked in his brief this question: "We wonder if the attorney knew that section 598 of the Civil Code of Practice had ever been written"? etc., which section requires that before a witness may be contradicted by showing that he made different statements on other occasions he should be asked concerning them and the time and place and persons present should be incorporated in the question. In reply thereto we might wonder if it occurred to counsel that any statement in the form of a confession or admission made by the defendant on trial is provable as substantive testimony, without the laying of a foundation by first asking defendant concerning it. We have so held continuously without any opinion to the contrary, and from which it results that the argument against the criticized testimony is likewise unfounded.

In support of this ground counsel further argues (b) that the court erred in admitting testimony the purpose of which was to contradict a witness for defendant, Nell Ball, who had testified that just after William Shelton committed the homicide for which he was on trial she saw, about 500 yards away from her, two men going away from the bridge, but did not know who they were. The purpose of that was to create the surmise that possibly those persons were defendant and his brother, Dewey Taylor. She had stated on the trial of Shelton that she had not seen the two Taylors going away from that bridge or anywhere about it upon the occasion of the homicide committed by Shelton, and, when asked if she had so testified, she practically admitted it. But, notwithstanding such admission, the stenographer who transcribed her testimony on the Shelton trial was introduced and...