Thompson v. Commonwealth

• Decision Date: 11 December 1936
• Citation: 99 S.W.2d 705,266 Ky. 529
• Parties: THOMPSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

99 S.W.2d 705

266 Ky. 529

THOMPSON v. COMMONWEALTH.

Court of Appeals of Kentucky

December 11, 1936

Appeal from Circuit Court, Harlan County.

John Thompson was convicted of murder, and he appeals.

Reversed.

Forester & Shehan, C.B. Spicer, and Rose & Huff, all of Harlan, for appellant.

B. M Vincent, Atty. Gen., and J. J. Leary, Asst. Atty. Gen., for the Commonwealth.

PERRY Justice.

John Thompson, having by the grand jury of Harlan county been indicted for the offense of murder, was upon trial found guilty as charged and his punishment fixed at death.

He has appealed, relying upon a number of grounds for reversal, but only one of which we deem it needful to here discuss, namely that the Harlan circuit court was not lawfully in session at the time the trial of appellant on this indictment was held.

This trial took place during what purported to be an extension of the regular March term, 1936, of the Harlan circuit court which under the provisions of section 965-26, Kentucky Statutes, begins on the third Monday in March, or here March 16, and extends for eighteen juridical days, ending April 4 1936.

Further, it is by the same section provided that the regular April term of the Bell circuit court, which is in the same Twenty-Sixth judicial district, shall begin on the second Monday in April and extend for eighteen juridical days.

It is further disclosed and agreed that on March 26, 1936, or during the regular March term period of the Harlan circuit court, its regular judge ordered that such term be extended "from the close of the regular term on April 4th, so as to cover and embrace the weeks of April 6th, 13th and 20th, so as to include eighteen juridical days in the Month of April, so as to close on April 25th." By this order, extending the regular term of the Harlan circuit court from April 6 to April 25, the honorable chancellor extended the same so as to overlap the regular April term provided by the statutes for the Bell circuit court, beginning on the second Monday of April, or April 13, 1936.

It is shown by the record that the trial of the defendant upon this indictment began in the Harlan circuit court on the tenth day of its extended March term, or April 16, and the verdict of the jury, finding the defendant guilty, was duly returned by it on April 17, 1936, or that the trial took place within the time of the overlapping of the extended term of the Harlan circuit court and the regular April term of the Bell circuit court as fixed by the statute beginning April 13, in clear violation of section 971-13, Kentucky Statutes, providing that: "In each county of each judicial district, except counties having circuit courts of 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."

This court, in considering this question arising in the much analogous case of Daniel v. Commonwealth, 227 Ky. 604, 13 S.W.2d 790, said: "But there was a conflict in the terms of the two courts. If the statute were construed to permit this practice, it would logically follow that the circuit judge could extend each term in every county in his district to the first day of the succeeding term, and recess and reconvene at his pleasure, and thus keep all the courts of his district in practically continuous session. Clearly this is forbidden by statute."

Also in Smith v. Commonwealth, 228 Ky. 710, 15 S.W.2d 458, 460, did the court, in its consideration and...