author: PALMORE, Judge.

text:
    Rawleigh PENNINGTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.
    Denver Adams, Hyden, for appellant.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Having been found guilty of willful murder and sentenced to life imprisonment, Rawleigh Pennington claims four reversible errors as follows: (1) denial of a continuance, (2) separation of the jury during the trial, (3) the giving of a willful murder instruction without evidence sufficient to justify it, and (4) overnight lodging of the jurors outside the county seat.

In the early evening of October 12, 1962, Pennington and the decedent, Hosa Shepherd, were in a card game outside the gasoline service station of Gordon Melton near Wooton, in Leslie County, Kentucky. Pennington said or did something that offended Shepherd, who thereupon departed to the nearby home of his mother to get a shotgun. When he returned with the gun, Pennington had left. Shepherd took the gun back to his mother’s place and then went with a companion to a drive-in picture show. Some two hours later he returned from the movie and was standing in front of the service station engaged in conversation with several others (apparently the service station was something of a neighborhood loitering place) when Pennington appeared on the scene with a pistol and, without a word, proceeded at short range to shoot him down. With the first shot, Shepherd, who was unarmed, started to run away, but Pennington continued to fire and Shepherd fell dead after moving but a short distance. The body showed several bullet wounds. Upon completion of this slaughter Pennington turned to the others present, said “Don’t none of you move or I will shoot you too,” and backed off up the road. That is the gist of the story as told by eyewitnesses for the Commonwealth. Pennington did not testify or put on any defense evidence.

That the evidence was enough to require a murder instruction is too obvious for further comment.

John Lamb, an eyewitness, was the only witness used at the examining trial. His name was among those listed on the indictment as required by Crim.Code of Practice § 120 and on the Commonwealth’s subpoena for the trial in circuit court. The sheriff was unable to locate him for service of the subpoena and reported to the court that according to his information the witness had left the state. Appellant moved for a continuance on account of his absence, but did not make a supporting affidavit showing what the witness would say. Under these circumstances there is no basis on which the trial court could have judged, nor on which this court can say now, whether the absence of the witness was prejudicial. Hence there was no error. Dewberry v. Com., 241 Ky. 726, 44 S.W.2d 1076, 1079 (1932); Carter v. Com., 258 Ky. 807, 81 S.W.2d 883 (1935); Wagner v. Com., Ky., 355 S.W.2d 151 (1962).

Immediately after the trial appellant’s counsel received information that the jurors had not remained together during the trial as required by Crim.Code of Practice, § 244(1) and thereupon included this circumstance as one of the grounds set forth in his motion for a new trial. The stronger of two affidavits submitted in support stated that during an intermission or recess in the trial the juror Miniard separated from the other jurors and visited the offices of the County Judge and the Tax Commissioner, and that two or three of the male jurors sat on a bench in the courthouse hallway while the sheriff accompanied four others to a rest room in the basement. A counter-affidavit by Miniard explained that after the selection of several jurors the panel was exhausted and the judge appointed him as guard for the partially formed jury while other prospective jurors were being summoned; that he and the others who had been selected were sworn by the court to remain together and not to discuss the case among themselves or with others; that at the time indicated in the above mentioned affidavit he and the other jurors sat on a bench near the doors to the County Judge’s and Tax Commissioner’s offices, remained in the sight and presence of one another, and did not discuss the case in any manner; that he merely exchanged greetings with the County Judge; and that at no time during the formation of the jury and trial of the case was there any discussion, among the jurors or between them and any other person, relating to the case.

Whatever improprieties might otherwise have been inferable from either of appellant’s affidavits were sufficiently rebutted, by Miniard’s affidavit, to put the matter within the discretion of the trial court. Under conflicting proof it cannot reasonably be said by this court that the jury had separated and impropriety had resulted. Colwell v. Com., Ky., 320 S.W.2d 116, 119 (1958). In Gay v. Com., 303 Ky. 572, 198 S.W.2d 308 (1946), cited by appellant, the Commonwealth made no-counter-affidavit to deny or explain the separation.

There were three ladies on the jury, and it was necessary that the jury be kept overnight. The court therefore put the male jurors in charge of the sheriff and the ladies in charge of a person of their own sex, and gave the usual admonitions. According to the motion for a new trial the male jurors stayed at the sheriff’s home and the others in the home of one of the lady jurors. Appellant’s brief indicates that one or both of these places were outside the county seat. All of the information as to where the jurors spent the night is apocryphal, because it was not authenticated by the trial court in the bill of exceptions. We cannot accept a statement that appears nowhere except in a motion, Senibaldi v. Com., Ky., 338 S.W.2d 915, 919 (1960), to say nothing of one that appears only in a brief. Even so, however, in the absence of a showing to the contrary it is our opinion that there is nothing improper or prejudicial in lodging a jury outside the county seat in which the trial is being held.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Gertrude TARTAR, Appellant, v. Ruth MEDLEY (now McAnnally), Appellee.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.
    T. D. Shumate, Steve Robbins, Richmond, for appellant.
    Joseph A. Montgomery, Somerset, Charles J. Schear, Newport, for appellee.
   PALMORE, Judge.

In Tarter (sic) v. Medley, Ky., 356 S.W.2d 255 (1962), this court affirmed a judgment of the Pulaski Circuit Court determining that Ruth Medley is the legitimate child and heir of Kenneth Tartar, deceased. One of the facts necessarily established by the evidence to support the verdict and judgment was that in about 1926 or shortly thereafter Mrs. Medley’s mother and Kenneth Tartar lived together in Cincinnati, Ohio, as common law man and wife.

Following receipt of the mandate affirming the judgment appellant filed in the circuit court a CR 60.02 motion set the judgment aside. She now appeals from an order overruling that motion.

CR 60.02 provides that a motion thereunder for relief on the grounds of (1) mistake, inadvertence, surprise or excusable neglect, (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under CR 59.02, or (3) perjury or falsified evidence, must be made within one year after the judgment. For that reason none of these three grounds afforded a permissible basis for the motion made in this case.

Ground (4) as enumerated in CR 60.02 is “fraud affecting the proceedings, other than perjury or falsified evidence,” and ground (6) is “any other reason of extraordinary nature justifying relief.” A motion based on one of these grounds (or on ground (5), which is not here involved) is not barred if made “within a reasonable time.”

The motion was supported by affidavits of seven persons who were intimately familiar with the particular area in Cincinnati where Mrs. Medley’s mother and Kenneth Tartar were shown by the trial evidence to have lived at the time of the common law marital relationship. All swore in effect that to their positive knowledge no white people lived in that neighborhood at that time. It is strenuously argued that this information grounds a case of “fraud affecting the proceedings,” saving the motion from the one-year limitation.

In the drafting of CR 60.02 any doubt as to whether false testimony constitutes intrinsic or extrinsic fraud was obviated by its specific exclusion from ground (4), “fraud affecting the proceedings, other than perjury or falsified evidence(Emphasis added.) If the statements contained in the seven affidavits are true, they tend to establish no more than the commission of perjury by witnesses for Ruth Medley at the original trial. Assuming this to be a species of fraud, it is the very kind specified in ground (3) and expressly excluded from ground (4). We are utterly unable to follow the argument that the affidavits show fraud committed on the court other than by perjury or falsified evidence. Hence they do not support the motion on ground (4).

The enumeration of perjury or falsified evidence as ground (3) and its pointed exclusion from ground (4) evince an unmistakeable intention that as a basis for relief it be subject to the one-year limitation. That purpose would be nullified if it were available through the avenue of ground (6). See Cline v. Cline, Ky., 324 S.W.2d 390 (1959).

The order overruling the motion is affirmed.


author: WADDILL, Commissioner.

text:
    HUBER & HUBER MOTOR FREIGHT COMPANY, Appellant, v. WORKMEN’S COMPENSATION BOARD of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.
    William Kiel, Louisville, Denney & Lan-drum, Lexington, for appellant.
    George D. Dorroh, Lexington, for appel-lees.
   WADDILL, Commissioner.

This is an appeal from a judgment of the Fayette Circuit Court dismissing a petition for review filed by appellant pursuant to KRS 342.285.

The appellee, William J. McCoy, was injured May 6, 1960, while employed by appellant. On November 30, 1960, he filed a claim for compensation benefits with the Workmen’s Compensation Board. Thereafter a paper styled “Stipulation and Order of Dismissal” and signed by McCoy, his counsel and appellant’s counsel was filed with the Board. Thereupon, the claim was dismissed by an order of the Board on March 7, 1961. However, upon the Board’s own motion this order was set aside on March 21, 1961, as unauthorized under KRS 342.265. There was no appeal taken from these orders. Subsequently, upon McCoy’s motion to reopen his claim, the Board entered an opinion and order on May 1, 1962, wherein it observed that, since the order of dismissal had been set aside, McCoy’s claim for compensation is still pending before the Board. Accordingly it overruled the motion to reopen and ordered McCoy’s claim for compensation, upon proper notice to the parties, to be heard by a referee.

Appellant contends that by virtue of the order dated March 7, 1961, the Board lost jurisdiction of McCoy’s claim and that subsequent orders of the Board were void.

It is the order of May 1, 1962, which appellant asked the circuit court to review. Obviously this order does not make any determination of McCoy’s claim. In our opinion the Board has merely provided for a hearing to determine the merits of the controversy. The effects of the order of dismissal and the order setting it aside may be considered at that hearing. We have concluded that the 1962-order was not a final appealable one. North American Refractories v. Day, 284 Ky. 458, 145 S.W.2d 75. Consequently the petition for its review was properly dismissed.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    WHITESBURG MUNICIPAL HOUSING COMMISSION, City of Whitesburg, Appellant, v. Sabina HALE et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.

      LeRoy W. Fields, Whitesburg, for appellant.
    Stephen Combs, Jr., Whitesburg, for ap-pellees.
   WILLIAMS, Judge.

The appellant, Whitesburg Municipal Housing Commission, filed action pursuant to KRS 99.420 seeking to condemn a tract of land owned by appellees for use as a redevelopment project. Commissioners were appointed, made an examination of the property and duly filed their report. There were no exceptions taken to the report of the commissioners until the time for filing them had expired. Motion to permit appellant to file exceptions after the time had expired was overruled.

Thereafter appellant filed an amended complaint alleging that the description of the property sought to be condemned was erroneous and setting out the correct description of that property. The court was requested to appoint new commissioners to assess the value of the actual tract being taken and to set aside the original report and award of the commissioners. Answer admitted the description as set out in the amended complaint was the correct description, but pleaded affirmatively that the property described in the amended complaint was actually the property which was viewed and appraised by the commissioners.

Deposition of the engineer employed by the appellant showed that he prepared a map of the entire property being taken and that the map did in fact depict the property as described in the amended complaint. He testified that the erroneously described property did not lie within the total boundary being taken by the appellant but was adjacent thereto. Depositions of the three commissioners established the fact that they used the map prepared by appellant s engineer, or a blueprint made therefrom, and that they did view and appraise the property sought to be condemned and described in the amended complaint. An amended report setting forth the proper description was filed by the commissioners.

No exceptions were taken to the amended report of the commissioners. The circuit court entered judgment fixing the value of the land taken at the price fixed by the commissioners.

The defective description in the original complaint was cured by the correct description set out in the amended complaint. The commissioners did in fact view and appraise the actual property condemned and properly described that property in their amended report. Consequently, the circuit court did not err in refusing to appoint new commissioners or to dismiss the original complaint without prejudice.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    BLUE DIAMOND COAL COMPANY, Inc., et al., Appellants, v. Nancy CAMPBELL et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.

      D. G. Boleyn, Hazard, for appellants.
    J. Woodford Howard, Prestonsburg, ami-cus curiae, for Ky. Coal Ass’n.
    Maxwell P. Barret, Bruce Stephens, Jr., Hazard, for appellees.
    J. W. Craft, Jr., Hazard, amicus curiae, for Ky. Oak Mining Co.
   CULLEN, Commissioner.

The appellants, holding a deed of mineral rights, conducted strip and auger mining operations on a 40-acre tract of land on which the appellees owned the surface rights. The appellees brought action for damages, claiming that the mining was done in reckless disregard of their rights. Upon a jury verdict awarding $3,000 damages judgment was entered, from which this appeal is taken.

The terms of the mineral deed were such as to make applicable in this case the rule stated in Buchanan v. Watson, Ky., 290 S.W.2d 40, that the holder of the mineral rights is not liable for damage done to the surface of the land in the mining operations unless the operations are carried on “oppressively, arbitrarily, wantonly or maliciously.”

The evidence showed that on the back portion of the tract a substantial amount of timber was destroyed, deep and wide cuts were made, large spoil banks were thrown up, and waste matter was pushed into the creek. However, with the exception of one item of testimony which we shall hereinafter discuss, there was no evidence even to suggest that these operations were so completely unnecessary or so out of line with customary strip and auger mining practices as to be considered oppressive, arbitrary, wanton or malicious.

Along the hillside on one side of the creek a cut was made, some 70 to 100 feet wide and 1,000 feet long. Beneath this cut no strippable coal was found, and in the bank only three or four auger holes were drilled. A mining engineer testified on direct examination that in his opinion this constituted the doing of “an excessive amount of damage.” However, on cross-examination it was brought out that his opinion was predicated on the fact that no appreciable amount of coal was made recoverable by the cut. He testified that by core drilling in advance the appellants could have discovered that there was no strip-pable coal in this particular spot. However, he admitted that such core drilling is not a customary practice in the strip mining industry and that the established practice is to bulldoze the top soil off and then determine whether there are any strippable seams.

In our opinion the testimony of the engineer was not sufficient to establish that the making of the cut in question was oppressive, arbitrary, wanton or malicious.

On the front of the tract, where there were a house, barn and fenced garden, the appellants bulldozed out a road which went through the garden and close to the house and barn. Dirt was pushed up against the side of the barn and it appears that the cutting out of the road caused the soil around and under the barn to erode. The appellees testified that this road never was used by the appellants, and that the appellants cut other roads through the tract which they used for their operations.

We think that the cutting of this road through the improved part of the tract, for no apparent purpose and with no use ever being made of it, might possibly be considered to be oppressive, arbitrary, wanton or malicious. However, for the reason hereinafter stated, the evidence concerning this road is not sufficient to sustain the verdict and judgment.

The only evidence offered by the appellees as to the amount of monetary damage sustained by them consisted of estimates of the market value of the entire tract before the mining operations were begun and its value after the operations were completed. No attempt was made to assign any specific or separable amount of damages to the road through the improved portion of the tract. There was no evidence, therefore, on which the jury could make an award for damages attributable to' the road. Since the appellants could be held liable only for such of the damages to the land as could be considered to have been done oppressively, arbitrarily, wantonly or maliciously, the burden was on the appellees to offer proof of the amount of recoverable damages. They failed in this burden and therefore the appellants’ motions for a directed verdict should have been sustained.

The judgment is reversed with directions to enter judgment for the defendants.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v Richard F. McCREADY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.

      John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., James B. Stewart, Leslie Aberson, Dept, of Highways, Frankfort, for appellant.
    Stephen T. Davis, Marshall McCann, Jr., White & McCann, Winchester, for appel-lees.
   MONTGOMERY, Judge.

The Department of Highways of the Commonwealth of Kentucky brought condemnation proceedings against certain lands owned by appellees, Richard F. McCready and wife, to secure a right of way for Interstate Highway 64. Both parties appealed from the county court commissioners’ award of $52,756.26. In circuit court the jury awarded $52,049.54. The Department appealed.

Appellees purchased the land in question in 1946 as part of a rectangular 30-acre tract lying just north of U. S. Highway 60 and near the west city limits of Winchester. At that time the 6 acres fronting on the highway were laid out in lots. They were subsequently sold. In 1950, with the aid of the Federal Housing Administration, a detailed topographical map of the remainder of the original tract was made. All elevations and depressions were shown. Lines were drawn dividing the tract into lots. Also in 1950 appellees recorded a plat including sixteen lots located just north of the original plat of lots next to U. S. Highway 60. Another similar plat of sixteen lots was recorded in 1952. In 1956 a similar plat of sixteen lots located just north of the lots shown on the 1952 plat was recorded. The 1956 plat includes five lots, Nos. 1, 4, 5, 8, and 12, of which varying portions were taken for the right of way.

The other parcel of land involved here is 11.4 acres lying immediately north of the lots shown on the 1956 plat. This acreage had not been developed at the time of the taking. Out of this 11.4 acres appellant took 3.13 acres for the right of way. The remaining 8.27-acre tract was severed from the remainder of the original tract. The principal controversy concerns the value of the 3.13 acres taken and the resulting damage to the 8.27 acres.

During the trial the FHA plat was introduced for the ostensible purpose of showing the topography of the land, but reference also was made to the lines setting off the proposed lots on the plat. The right of way sought to be taken was indicated thereon.

Appellant urges that the trial court erred in allowing the introduction of the plat as purporting to show a condition which it contends was nonexistent at the time of taking, and further in allowing appellees’ witnesses to place a developed subdivision lot value on an undeveloped tract which should have been considered as farm land. Appellant insists that the FHA plat created an image of developed land in the minds of the jurors because lots were actually laid off on it.

For the appellees it was shown that the entire tract of 30 acres sloped upward from U. S. Highway 60 and leveled off in a plateau from the right of way sought to the rear of the tract. It also was shown that the progressive development of the tract was more advantageous in obtaining better prices for tbe lots and as an income tax proposition. Water, gas, electricity, and streets were accessible to the land in controversy.

It was not error to admit the plat. In substance, the testimony shows that the land in question had been purchased for the purpose of development as a subdivision long before interstate highways had been conceived. More than half of the tract had already been developed. The entire tract was being developed schematically and progressively as a subdivision. In such case the plat was admissible to show the topography of the ground and the susceptibility of the land for use as a subdivision. Commonwealth Department of Highways v. Vincent, Ky., 357 S.W.2d 678; Commonwealth Department of Highways v. Evans, Ky., 361 S.W.2d 766.

Appellant’s second contention that appellees’ witnesses were allowed to put a developed subdivision lot value on an undeveloped tract is equally without merit. This concerns the 11.4 acres. The witnesses testified to the value of the land for subdivision purposes and then made appropriate allowances for developing it. One witness, in describing how he arrived at a value, said that he took into account the number of lots that could be produced, comparable sales in similar subdivisions, allowance of a reasonable time in which to sell the lots, and cost of development of the subdivision, including installation of utilities and paved streets. The procedure used by appellees’ witnesses was similar to the procedure used by appellant’s witnesses, who treated the land as subdivision lots instead of as farm land. The witnesses testified to varying values. The jury was thus left to fix a value based on the testimony heard. There being no showing of bias or prejudice, the verdict should stand. Commonwealth v. Gilbert, Ky., 253 S.W.2d 264.

Judgment affirmed.