Wood v. Com.

• Decision Date: 18 June 1971
• Citation: 469 S.W.2d 765
• Parties: Margaret Catherine WOOD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

Page 765

469 S.W.2d 765

Margaret Catherine WOOD, Appellant, v.COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 18, 1971.

Frank E. Haddad, Jr., Louisville, for appellant.

John B. Breckinridge, Atty. Gen., and James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.

EDWARD P. HILL, Jr., Judge.

The judgment of conviction of Edward Lenin Williams for the wilful murder of appellant's deceased husband, James Alvin Wood, was affirmed by the opinion in Williams v. Commonwealth, Ky., 464 S.W.2d 244.He was given the death penalty.

Appellant was indicted along with Williams and one other person on a charge of wilful murder.After consulations by appellant's attorney with the first assistant Commonwealth's attorney, she changed her plea from not guilty to guilty to an amended charge of 'aiding and abetting voluntary manslaughter' and waived jury trial.Her punishment was fixed at 21 years in prison.She immediately moved the court that she be probated.The court ordered the probation officer to investigate and file a report, which was done.The report was considered by the court with the comment that probation was objected to by the Commonwealth's attorney, and the trial court overruled her motion to probate.Appellant then filed motion to set aside the judgment of conviction and grant her a new trial on the ground that her plea of guilty was entered by her in consideration of a promise from the first assistant Commonwealth's attorney, to use his own language, that he'would not either oppose or favor probation,' after which he objected to and protested probation to the probation officer.The motion to set aside the judgment was overruled, and this appeal followed.

First the affidavit of the first assistant Commonwealth's attorney admits he promised he'would not either oppose or favor probation of the defendant when the matter came before the court for determination.'He further states that on the date of the hearing, he was 'present in the courtroom and did not in anywise express an opinion in favor or in opposition to the motion to probate.Affiant stood mute in the court and was not asked by the presiding judge * * * whether or not he favored or opposed the Motion to Probate.'

He also testified that KRS 439.510'provides that any and all information obtained by the Probation Officer is absolutely privileged and 'should not be disclosed directly or indirectly to any person' unless ordered by the Court.'

He prefaced these statements with one that he first advised appellant that the question of whether to probate or not to probate was entirely within the discretion of the trial judge.

The first assistant Commonwealth's...