Terrell v. Commonwealth

CourtCourt of Appeals of Kentucky
Writing for the CourtThomas
Citation194 Ky. 608
PartiesTerrell v. Commonwealth.
Decision Date28 April 1922
194 Ky. 608
Terrell
v.
Commonwealth.
Court of Appeals of Kentucky.
Decided April 28, 1922.
Appeal from Perry Circuit Court.

Page 609

F. J. EVERSOLE, J. T. BOLING and JESSE MORGAN for appellant.

CHAS. I. DAWSON, Attorney General, and THOMAS B. McGREGOR, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS — Affirming.


A short time after sundown, and before it became dark, on the evening of August 10, 1921, the appellant, Kye Terrell, in Perry county near the mining camp of the Blue Diamond Mines, shot and killed Lee Combs, a youth nineteen and one-half years of age. He was afterwards indicted for the homicide by the grand jury of the county in which he was charged with the crime

Page 610

of murder, and upon his trial thereunder he was convicted and his punishment fixed at life confinement in the penitentiary. His motion for a new trial was overruled and from the judgment pronounced upon the verdict he prosecutes this appeal, his counsel urging a number of reasons why, in his opinion, the judgment is erroneous.

The first, and indeed, according to our view, the only one possessing even the semblance of merit, is that the indictment was not indorsed and signed as required by section 119 of the Criminal Code of Practice, which says: "The concurrence of twelve (but now under the Constitution, section 248, nine) grand jurors is required to find an indictment; when so found, it must be endorsed `a true bill,' and the indorsement signed by the foreman." Upon the back of the indictment there was signed the name, "G. W. Eversole," and immediately thereunder, and slightly to the right, was the indorsement "a true bill." The order of the court filing it recites that it was received from the hands of the foreman in the presence of the grand jury and filed in open court and that the grand jury, after answering to the call of their names, "through their foreman reported an indictment against Kye Terrell, charging him with the crime of wilful murder, said indictment was endorsed, a true bill, by the foreman of the grand jury, and was handed by the foreman of the grand jury in the presence of the grand jury to the clerk of this court, who marked same filed as the law directs." The purpose of the requirement, that the indictment shall be indorsed "a true bill" and that it shall be signed or certified as such by the foreman of the grand jury, is to unerringly identify the indictment and to evidence the fact that it was concurred in by the grand jury in the manner required by law, and such indorsement constitutes the only competent evidence that the paper filed is an indictment legally found. Oliver v. Commonwealth, 95 Ky. 372; Pence v. Commonwealth, idem 618, and Patterson v. Commonwealth, 86 Ky. 313, also reported in 99 Ky. 610. Those cases, as well as those of Commonwealth v. L. & N. R. R. Co., 17 Ky. L. R. 562 (two cases), and same v. same, idem 563, hold that the code requirements as to the indorsement and signature of the foreman are mandatory, and the opinion in the Pence case holds that when the order of court recites a compliance with the section of the code it will be sufficient evidence of that fact unless the record affirmatively

Page 611

shows to the contrary. In that case the record did not show any indorsement or signing on the indictment, but the order recited that each was properly made and it was held that the court would presume that they were omitted from the transcript by mistake or oversight of the clerk in copying it. In this case, however, the point was raised in the court below and we think that fact sufficient to overcome the presumption which the court indulged in the Pence case. The gravamen of the contention now under consideration is that the indorsement, "a true bill," appearing upon the indictment was not "signed" within the contemplation of the law by the foreman of the grand jury and as is required by section 119, supra, of the criminal code, because the name of the foreman was not written under that indorsement, but instead it was written immediately above it; and in support of the contention, section 468 of the statutes is relied on. That section says: "When the law requires any writing to be signed by a party thereto, it shall not be deemed to be signed unless the signature be subscribed at the end or close of such writing." If, therefore, the "writing" referred to in that section, the signing of which is required to be at its end or close, was intended to include the signing of the name of the foreman upon the indictment as required by section 119 of the criminal code, then there exists some grounds for this extremely technical objection.

At common law and in the absence of a statute prescribing a requirement to the contrary, the "signing" of any writing which the law required to be so evidenced need not be at the end, bottom or close of the paper, but the signature to be effective may be placed either at the bottom, top, middle, side or margin of the paper by the one whose duty it was to sign it and if so written with the intention that the written name should perform the legal requirement of a signature the writing would be deemed as legally and properly signed. In other words, at common law the precise place on the writing where the signature was made was neither material nor essential. In 25 A. & E. Ency. of Law, second edition, page 1065, the text upon this subject says: "Although the words `sign' and `signature' sometimes import a signature at the bottom of the instrument, yet in neither ordinary nor legal use are they confined to the writing of the name at the bottom of a paper. An instrument is signed where the name appears at the bottom,

Page 612

top, middle or side of a paper, if such name was intended as a signature."

Some of the cases supporting the statements of the text are: Auzerais v. Naglee, 74 Cal. 60; California Canneries Co. v. Scatena, 117 Cal. 447; Wise v. Ray, 3 Green (Iowa) 430; Drury v. Young, 58 Md. 546, 42 Am. Rep. 443; Davis v. Shields, 26 Wend. (N. Y) 341; Adams v. Field, 21 Vt. 256; Tingley v. Bellingham Bay Boom Co., 644; Sarah Miles' Will, 4 Dana 1; Allen v. Everett, 12 B. Mon. 378, and Soward v. Soward, 1 Duvall, 126. Those cases deal with questions growing out of the proper execution of contracts required by the statute of frauds to be in writing and "signed by the party charged," and questions involving the proper execution of wills under statutes requiring them to be signed by the testator. The original English Statutes, upon those two subjects, used the word "signed" when referring to the execution of the writing, and the English courts, as will be seen from the cases, supra, held that in as much as there was no statutory requirement as to the place on the writing where the signature should appear, it was competent under the common law rule for it to appear anywhere thereon or therein if written with obligatory intention. Many of the earlier statutes of the states were phrased similarly to the English statutes and were given the same construction. Thus, in the cited Vermont case of Adams v. Field (which was a will case, and the name of the testator appeared at the beginning or...

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4 practice notes
  • Helms v. State, No. 31140
    • United States
    • Indiana Supreme Court of Indiana
    • October 30, 1968
    ...1, 2, 3, 4 and 5 above. The appellant, in support of his allegations or error, cites the following cases: Terrell v. Commonwealth (1922), 194 Ky. 608, 240 S.W. 81; Johnson v. State (1864), 23 Ind. 32; [251 Ind. 339] Heacock v. State (1873), 42 Ind. 393; Cooper v. State (1881), 79 Ind. 206. ......
  • Kearns v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • May 10, 1932
    ...from the acts of the accused, and it may be founded upon a reckless disregard for the safety of human life. Terrell v. Commonwealth, 194 Ky. 608, 240 S.W. 81; Davis v. Commonwealth, 193 Ky. 597, 237 S.W. 24, 23 A. L. R. 1551; Lucas v. Commonwealth, 231 Ky. 76, 21 S.W.(2d) 113. Where a man i......
  • Daniel v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • March 9, 1923
    ...196 Ky. 807, are relied on. Other later cases on the same point are: Davis v. Commonwealth, 193 Ky. 507, and Terrell v. Commonwealth, 194 Ky. 608. The rule as to the duty of the court in instructing the jury, as stated in the Davis case, supra, is: "That the law applicable to every sta......
  • Cochran v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • September 29, 1925
    ...95 Ky. 372, 25 S.W. 600; Commonwealth v. L. & N.R. Co., 32 S.W. 136; Lewis v. Commonwealth, 48 S. W. 977; Terrell v. Commonwealth, 194 Ky. 608, 240 S. W. Wherefore, the judgment of conviction is reversed, and the cause remanded for proceedings not inconsistent herewith. ...
4 cases
  • Helms v. State, No. 31140
    • United States
    • Indiana Supreme Court of Indiana
    • October 30, 1968
    ...1, 2, 3, 4 and 5 above. The appellant, in support of his allegations or error, cites the following cases: Terrell v. Commonwealth (1922), 194 Ky. 608, 240 S.W. 81; Johnson v. State (1864), 23 Ind. 32; [251 Ind. 339] Heacock v. State (1873), 42 Ind. 393; Cooper v. State (1881), 79 Ind. 206. ......
  • Kearns v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • May 10, 1932
    ...from the acts of the accused, and it may be founded upon a reckless disregard for the safety of human life. Terrell v. Commonwealth, 194 Ky. 608, 240 S.W. 81; Davis v. Commonwealth, 193 Ky. 597, 237 S.W. 24, 23 A. L. R. 1551; Lucas v. Commonwealth, 231 Ky. 76, 21 S.W.(2d) 113. Where a man i......
  • Daniel v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • March 9, 1923
    ...196 Ky. 807, are relied on. Other later cases on the same point are: Davis v. Commonwealth, 193 Ky. 507, and Terrell v. Commonwealth, 194 Ky. 608. The rule as to the duty of the court in instructing the jury, as stated in the Davis case, supra, is: "That the law applicable to every sta......
  • Cochran v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • September 29, 1925
    ...95 Ky. 372, 25 S.W. 600; Commonwealth v. L. & N.R. Co., 32 S.W. 136; Lewis v. Commonwealth, 48 S. W. 977; Terrell v. Commonwealth, 194 Ky. 608, 240 S. W. Wherefore, the judgment of conviction is reversed, and the cause remanded for proceedings not inconsistent herewith. ...

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