Tuttle v. Com.
| Decision Date | 02 October 1959 |
| Parties | Woodrow TUTTLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Lewis & Weaver, Gordon Eversole, London, for appellant.
Jo M. Ferguson, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
STANLEY, Commissioner.
Woodrow Tuttle has moved for an appeal (Criminal Code of Practice, Sec. 348) from a judgment of conviction as a second offender of the local option law. The penalty is imprisonment for 120 days in jail and a fine of $200. KRS 242.230, 242.990.
The indictment charged Tuttle with possession for sale of 1,201 cans of beer and 25 half pints of gin on October 28, 1958. A second count charged that the accused had been previously convicted of a similar offense in May, 1958.
We find no merit in the contention that the search warrant should have been quashed and evidence based upon the search suppressed. The affidavit of the sheriff, upon which the warrant issued, was based upon information furnished him by a named state police officer. The form of the affidavit is almost identical with that held to have been sufficient in Brake v. Commonwealth, 311 Ky. 436, 224 S.W.2d 698, and confirmed in Commonwealth v. Bailey, Ky., 259 S.W.2d 49. The affidavits held to be insufficient in several cases relied upon by the appellant are distinguishable.
There is a formidable question concerning the instructions to the jury.
Instruction No. 1 submitted in proper form the issues as to the proof of guilt of the present or principal offense charged to have been committed on October 28, 1958, but omitted reference to the specific penalty therefor if the jury should find the defendant guilty. No. 2 was coupled to No. 1 by 'and.' It properly submitted the question of whether the defendant had been previously convicted, and concluded with the direction that should the jury also find that condition, they should fix 'his punishment at a fine in any sum not less than $40 nor more than $200 and in addition at confinement in the county jail not less than sixty days nor more than 120 days, in your discretion.' No. 3 was a general reasonable doubt instruction 'on the whole case.'
Where the accused is indicted as a second offender of a similar misdemeanor (where the statute authorizes the charge, as does the Local Option Law, KRS 242.990) or of a second or third felony, KRS 431.190, and there is evidence supporting the accusation, the instructions should permit the jury to return three possible verdicts, viz., (1) not guilty, (2) guilty of the particular or principal offense charged, or (3) guilty of a second or third violation of the law, as the case might be. Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728; Allen v. Commonwealth, 277 Ky. 168, 125 S.W.2d 1013; Hamm v. Commonwealth, Ky., 300 S.W.2d 562; Milby v. Commonwealth, Ky., 318 S.W.2d 55. See for approved instructions Stanley's Instructions to Juries, Secs. 950, 951.
The instructions in the instant case, therefore, would be erroneous in failing to permit the jury to impose punishment only for the present offense and in providing only for the enhanced penalties of a second offense except for an agreement or confession of the defendant that he had been previously convicted of illegally possessing intoxicating liquor.
The circuit clerk was called as a witness for the Commonwealth to prove the record of the previous conviction. After he had answered three qualifying questions, the following appears in the transcript: 'It is stipulated and agreed between the Commonwealth and the defendant and his counsel that [description of previous indictment, conviction and judgment and that the principal offense charged was subsequent to the first conviction].'
It is to be noted that this is not a stipulation as to what the Clerk would testify the record showed, as in Spencer v. Commonwealth, 221 Ky. 166, 298 S.W. 389. It is an 'agreement' that the defendant had been previously convicted. This is a confession of guilt and is the equivalent of a plea of guilty entered in open court. There was no need to prove the conviction. 25 Am.Jur., Habitual Criminals, Sec. 29. While the court instructed on the charge as being in issue, it does not seem to have been necessary. The only issue was guilt of the latest offense charged. If the jury should find the defendant guilty of that particular or principal offense, it would follow that the increased penalty, within the limits prescribed, would have to be imposed.
In Ward v. Hurst, 300 Ky. 464, 189 S.W.2d 594, a prisoner in the penitentiary serving a life sentence as an habitual criminal sought relief by habeas corpus. He had pleaded guilty to the indictment which had charged...
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Ingram v. Com.
...* * *'. He admits that the instruction followed the law announced in Hamm v. Commonwealth, Ky., 300 S.W.2d 562 (1957); Tuttle v. Commonwealth, Ky., 331 S.W.2d 891 (1959) and a long line of cases which preceded them. He urges that these cases be KRS 431.190, the Habitual Criminal Act, has be......
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Hutson v. Com., No. 2005-CA-002289-MR.
...Criminals, § 29. While the court instructed on the charge as being in issue, it does not seem to have been necessary. Tuttle v. Commonwealth, 331 S.W.2d 891, 892 (Ky.1959). We hold that the stipulation of Hutson's counsel to his client's prior felony conviction was more than a sufficient ba......
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Covington v. Com.
...277 Ky. 168, 125 S.W.2d 1013; Green V. Commonwealth, Ky., 281 S.W.2d 637; Hamm v. Commonwealth, Ky., 300 S.W.2d 562; Tutle v. Commonwealth, Ky., 331 S.W.2d 891; Ingram v. Commonwealth, Ky., 427 S.W.2d 815. As pointed out in Tuttle, the instructions should permit the jury to return three pos......
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Mercer v. Com.
...penalty prescribed by the statute. Ward v. Hurst, 300 Ky. 464, 189 S.W.2d 594; Hamm v. Commonwealth, Ky., 300 S.W.2d 562; Tuttle v. Commonwealth, Ky., 331 S.W.2d 891; Pennington v. Commonwealth, Ky., 328 S.W.2d 549. These instructions left it to the discretion of the jury whether they would......