Ward v. Hurst

• Decision Date: 25 May 1945
• Citation: 300 Ky. 464,189 S.W.2d 594
• Parties: WARD v. HURST.
• Court: Kentucky Court of Appeals

189 S.W.2d 594

300 Ky. 464

WARD v. HURST.

Court of Appeals of Kentucky

May 25, 1945

As Extended on Denial of Rehearing September 28, 1945.

Appeal from Lyon County Court; James A. Vinson, Judge.

Habeas corpus proceeding by Junior Hurst against Dewey A. Ward Warden of the Eddyville Penitentiary. From a judgment discharging the petitioner from serving a life sentence, the warden appeals.

Reversed with directions.

Eldon S. Dummit, Atty. Gen., and Harry H. Wilson and Forest H. Hume, Asst.Attys. Gen., for appellant.

J. B Johnson, of Williamsburg, for appellee.

THOMAS Justice.

This is an appeal from a judgment of the Lyon County Court rendered in this habeas corpus proceeding discharging the appellee and petitioner from serving a life sentence in the penitentiary rendered by the Whitley circuit court on October 21, 1943 the petition being against the appellant, Dewey A. Ward, Warden of the Eddyville penitentiary.

The indictment at the trial, at which the life sentence was imposed, charged petitioner with having escaped from the jail of Whitley County while being confined therein upon a felony charge, and with being a habitual criminal. The facts as charged in the petition--and as recited in the judgment of the court appealed from--were and are: That on May 7, 1940, petitioner was indicted, tried and convicted in the Whitley circuit court of breaking into a railroad depot and sentenced to confinement in the state penitentiary for five years. On May 29, 1940, he was indicted, tried and convicted under a charge of sodomy committed on May 8th of that year and for which he was sentenced to confinement in the penitentiary for two years, the indictment charging him with being a habitual criminal. On September 22, 1942, he was indicted for grand larceny which also charged him with being a habitual criminal, and he was convicted under that indictment on October 1, 1942. While confined in the county jail awaiting transportation by the sheriff to the penitentiary he escaped jail and, as we have stated, it was upon the trial of the latter indictment that he was given the life sentence. After petitioner's conviction under the first two indictments he was paroled and it was after then that he committed the other two felonies indicated.

It will be perceived that each of the crimes committed by petitioner were felonies, and it would seem to be near to cruelty to deprive him of enjoying the goal which he had so persistently sought. Nevertheless he is entitled to all constitutional guaranties that go to make up 'due process of law.'

At each of petitioner's trials he entered a plea of guilty and one of the grounds alleged in his petition for the writ is that the court at the trial of the last indictment, whereat petitioner received his life sentence, in its instruction to the jury--after reciting his former convictions--said: 'You will, therefore, find the defendant, Junior Hurst, guilty as charged in the indictment of being an habitual criminal and punished--only one punishment you can give him--at confinement in the state penitentiary for life.' It is alleged in appellee's petition, and relied on in brief filed in this court by petitioner's counsel that in giving that instruction to the jury the court deprived him of the benefits of a trial by jury in violation of section 7 of our Constitution which is a part of our Bill of Rights, and that contention will first be disposed of.

We have held in cases--so numerous that it would be a waste of time and space to list them in this opinion--that a plea of guilty made by defendant in open court to an indictment charging either a felony or misdemeanor, dispenses with the necessity of the court trying the case to submit the issue of guilt or innocence to the jury, and that a failure to do so does not deprive defendant on trial to his constitutional right to a jury trial. The same rule of practice is also approved by the courts of other states, as is pointed out in the text of 14 Am.Jur. 950, sec. 269 and notes thereto. Such interpretation is in recognition of the fact that neither constitutional nor statutory law requires futile action. Therefore, when an indicted defendant solemnly enters a plea of guilty in entering upon his trial the judge of the court has the authority to accept his plea of guilty and proceed with the trial accordingly.

But it is equally as strongly urged that while the rule is as stated above, as applicable to the issue of guilt or innocence, it does not apply to the fixing of defendant's punishment, and that the court erred in not submitting that question to the jury at the trial at which the life imprisonment sentence was pronounced. But the law appears to be overwhelming, with none to the contrary, that section 7 of our Constitution guaranteeing trial by jury applies only to the issue of guilt or innocence under a plea of not guilty, and that the mandatory provision for a jury trial has no reference to the amount of punishment that should be inflicted upon conviction, and which is clearly pointed out in the text of 31 Am.Jur. 575, section 27, which for the benefit of members of the bar who may not possess that publication we herewith insert: 'The constitutional right of trial by jury is limited to the question of guilt or innocence, and does not extend to the determination of term of imprisonment or punishment. This follows since it was no essential part of a jury trial at common law that the jury should also fix the punishment if they convicted an accused. A statute requiring the infliction of the death penalty upon one convicted of killing a human being does not contravene a constitutional provision giving the jury in all criminal cases the right to determine the law and the facts. A fortiori, where a defendant pleads guilty of an offense charged, he is not constitutionally entitled to a jury trial in the determination of term of imprisonment or punishment. Also, the adoption of a new Constitution preserving the right of trial by jury 'as heretofore enjoyed' has been construed not to include the right, which has existed by statute for many years, of having the jury assess the punishment in criminal cases whenever there is an alternative or discretion in regard to it.'

The court in the case of Mack v. State, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349, shall be confined in the penitentiary during his life.' (Our emphasis.) The punishment is therefore mandatorily fixed by the Legislature. But even in the absence of the above-cited authorities it would also be a futile provision of the law to require the jury to fix the punishment when the provided law had mandatorily done so. It is therefore conclusive that this alleged error, which it is claimed by counsel rendered the judgment void, is without merit.

Another ground relied on by petitioner, and argued by counsel to procure the writ prayed for, is that all of the indictments following the conviction of the first felony by petitioner failed to state a public offense and that they were so irregularly drafted as not to support a conviction thereunder. Each of them stated the particular offense charged therein, and that defendant was an habitual criminal. However, the draftsman of the last three indictments inserted therein verbatim all previous...