author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Price CAMMACK et ux., Appellees.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.

      Robert Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Frankfort, Strother Kiser, Sp. Asst. Atty. Gen., William O. Gilbreath, Lexington, for appellant.
    W. Earl Dean, Harrodsburg, Walter Patrick, Lawrenceburg, for appellees.
   HILL, Judge.

In this highway condemnation case, the Commonwealth appeals from a jury verdict and judgment amounting to $15,000 for 9.58 acres of land and improvements taken from a farm containing 204.76 acres.

Assigned as grounds for reversal are the two following contentions: (1) Incompetent evidence based on noncompensable factors, and (2) the verdict is excessive.

Before the taking of the land for use in construction of the Central Kentucky Parkway between Versailles and Elizabethtown, appellees’ rolling hill farm was well kept and improved. The main residence and adjunctive farm buildings were on the north end of the property, and a smaller house with the usual farm buildings on the south end was used by appellees’ son. A farm road following the ridge, or high ground, extended the entire length of the farm. All of the farm was “tractor” land.

The land taken for highway purposes separates the farm, leaving 2.61 acres, on which the main residence occupied by appellants is situated, on the north side of the parkway and 192.57 acres on the south side. Appellees have access from the north tract to the south tract but are required, after the taking, to travel about 2,000 feet farther. A thirty-foot cut was made south of the 2.61 acre tract.

Included in the taking were: One barn, one chicken house, two sheds, two ponds, one spring, one cistern, one well, five gates, three oak trees, and some fence.

The county court commissioners awarded the landowners $14,375.

Two witnesses offered by the Commonwealth fixed the difference between before and after value of the farm at $4,090 and $3,500.

Appellees’ two witnesses fixed the difference in before and after value at $18,025 and $17,100.

The jury verdict determined the before value to be $40,800 and the after value to be $25,800, a difference of $15,000. The lowest after value of all witnesses testifying was $27,200, which was fixed by one of appellant’s witnesses. Obviously the jury fixed the after value $1,400 less than that fixed by any witness. This point is not discussed in appellant’s brief, but this deviation by the jury from the range of values fixed by the witnesses on both sides alone is sufficient to reverse this case.

Witnesses for appellees cited comparable farm sales ranging from $77 to $150 per acre but testified appellee’s farm was better, with superior improvements, than the ones mentioned in the comparisons. Both witnesses for appellant and appellees, generally, relied on the same sales.

First we consider the contention of appellant that appellees’ two witnesses based their difference in before and after values on a noncompensable factor or “inconvenience.”

Ordinarily, “inconvenience” is not compensable in eminent domain cases. Commonwealth, Department of Highways v. Roberts, Ky., 390 S.W.2d 155 (1965), and Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963). However, where a farm is severed, its value as a unit for farming purposes may be impaired. See Commonwealth, Department of Highways v. Sea, Ky., 402 S.W.2d 842 (1966), wherein it is written:

“Where a farm is divided by the taking of a part of it for highway purposes, the separation alone may or may not reduce its market value, depending on the highest and best use of the land. * * * the separation of a farm, having farming as its highest and best use, may materially and substantially impair its market value as a unit.”

The evidence, which is now contended was improper and prejudicial, related to the construction of the new highway across the farm road resulting in some inconvenience and impairment of the unit value of the farm. The only objection to the evidence of appellees’ witness McWilliams was this statement: “Object to the 45 rods of fence, your Honor.” At the end of the evidence of this witness in chief, this motion was made: “Your Honor, I want to move to strike on the ground that I don’t feel that he is qualified, and on the further ground that his values are based on an improper basis.” Conceding arguendo this evidence improper, we conclude the question was not properly preserved for appellate review for reasons contained in Commonwealth, Department of Highways v. Shaw, Ky., 390 S.W.2d 161, 163 (1965), from which we quote:

“When the witness’s valuation is ‘based solely or primarily on an improper factor his estimate becomes invalid and is subject to a motion to strike.’ * * * But when the improper factor can be eliminated from his calculations and the estimate revised accordingly the appropriate remedy is an admonition to the jury not to consider the improper factor and a requirement of the witness that he revised his figures and give an opinion on the correct basis. * * * In such an event, we are agreed that even though a motion to strike all of the witness’s testimony is inappropriate and properly overruled, the trial court of its own volition could appropriately admonish the jury and require the witness to eliminate the improper factor from his calculations and revise his estimate accordingly. However, it is counsel’s responsibility to request the relief to which he is entitled, and in the absence of an appropriate motion the trial court’s failure to act on its own volition is not an error. The court is of the opinion that a blanket motion to strike the entire testimony of the witness is not sufficient to make it incumbent on the trial court, upon correctly overruling the motion, to initiate some other and more appropriate action.” (Emphasis ours.)

Substantially the same motion was made at the conclusion of the testimony of Bird-whistell, the other witness for appellees.

Finally, there remains the question of excessiveness. It must be conceded that nearly ten acres of appellees’ land has been taken, as well as the foregoing list of improvements, and that their farm has sustained some decrease in value by reason of its separation as a unit for farming purposes. But, it is difficult for this court, as it was for the jury, to arrive at a proper compensation by scientific means of calculation. We are not told the value or cost of the barn taken only that it was ten years old, which isn’t old as the age of a barn goes. We, like the jury, are kept in the dark as to the cost of the two ponds and the other buildings taken. The court at present is firmly committed to the proposition that property owners in condemnation cases may not on direct examination testify to the damage factors.

As stated in Commonwealth, Department of Highways v. Cardinal Hills Nursery, Ky., 380 S.W.2d 249, the landowner may:

“ * * * relate any pertinent factors considered by them in arriving at the values to which they have testified; in so doing they may state their estimate of the amount by which a major structure enhances the ‘before’ value of the land to which it is affixed, and in support of that estimate may testify as to the cost, original or reproduction, less depreciation, of the structure, upon the conditions and under the limitations set forth in Commonwealth, Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640.”

All of the evidence considered, the amount of the verdict strikes us at first blush as excessive. The highest per acre value testified to by the landowners’ two witnesses was $265, which included all improvements, most of which remained unmolested. Taking this figure, the land taken has a value of $2,538.70, assuming the land taken contained its pro rata share of the improvements. Appellant’s two witnesses fixed the per acre before value of the farm at $165 and $150. At the rate of $165 per acre, the highest value of appellant’s witnesses, the bare land would have a value of only $1,580.70.

It is interesting to note that appellant’s two witnesses fixed the after value of the farm at $29,610 and $27,200, while ap-pellees’ two witnesses fixed after values at $36,300 and $34,150. The chief bone of contention concerns the before value. Ap-pellees’ witnesses ranged about $20,000 higher than did appellant’s on before value.

The judgment is reversed for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    William Edward STUMPH, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.

      Theodore H. Lavit, Charles Mattingly, Lebanon, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

This is an appeal from a verdict and judgment convicting appellant of the crime of voluntary manslaughter and fixing his punishment at twenty-one years in prison.

Two reasons are advanced for reversing the judgment, (1) the trial court erred in overruling appellant’s motion for a continuance, and (2) failure of the trial court to admonish the jury pertaining to an outburst by a spectator at the trial.

We are of the opinion that the first error assigned demands a reversal of the judgment. It is unlikely that another “outburst” will occur on another trial, but, if it does, we think it the duty of the court to maintain order in the courtroom. Upon the occurrence of a spectator crying out a denial to a statement being made by a witness on the stand, the trial court should take appropriate action against such offender and admonish the jury not to consider such conduct even without an objection or motion for admonition by the party who considers himself aggrieved thereby. Nevertheless, preliminary to the right of appellate review, a party feeling aggrieved by an occurrence in court must give the trial court the first opportunity to alleviate his grievance by the appropriate objection or motion

Appellant was indicted September 27, 1965, for the killing of Joe Blandford. Before his examining trial in September, W. Earl Dean, Sr., was retained by appellant or some of his relatives. On January 18, 1966, Mr. Dean was discharged via the appellant’s brother. At 3:00 p. m. on January 26, 1966, Theodore H. Lavit and Charles Mattingly were appointed by the court to defend appellant, whose trial was set for January 28, 1966.

Appellant moved the court for a continuance for one week and filed the affidavits of his attorneys in support thereof, in which it was stated:

“That the affiants each have practiced law in the Commonwealth of Kentucky for approximately fifteen months and that with their meager experience combined with the fact that they had but a day and a half to prepare for a capital punishment trial, cannot adequately render effective counsel to defendant herein without impairing his constitutional right to effective representation; that affiants could render legal counsel to the defendant if the court granted a continuance of this cause for a period of no less than one week.”

It is stated in appellant’s brief that the two young attorneys appointed to represent him had never tried a case before a jury.

The right to be represented by counsel in a felony case contemplates that the attorney must have a reasonable time in which to become familiar with and prepare the case. Davis v. Commonwealth, 310 Ky. 360, 220 S.W.2d 844.

Generally, the question of whether one charged with crime has a right to continuance is left to the sound discretion of the trial judge. But this discretion may be abused.

In the present case, the two young, inexperienced attorneys were appointed to represent appellant without hope of compensation or reward. In Davis v. Commonwealth, supra, it is written:

“While each must stand upon its own facts, there runs throughout the line of decisions an appreciation of the fact that lawyers appointed to defend accused persons are often entitled to greater consideration with respect to time and opportunity for preparation for trial' than otherwise. They ought not, in addition to assuming the grave responsibility without compensation, be compelled to sacrifice the interests of other clients in order to get ready in an unreasonable time to defend the accused.”

The inexperience of the two attorneys appointed should weigh heavily in favor of continuance. It is a great event in the life of a young attorney when he corn-templates his very first jury trial. One he will not likely forget. The many unfamiliar procedural questions that he must encounter demand time, research, and imagination. Really, he needs to think and ponder over that first jury trial.

Counsel for appellant didn’t ask for a great delay — only for one week, and it is argued in brief and unanswered that there was no congestion in the criminal docket of Marion County at the time.

Counsel for appellee argues that appellant did not exercise diligence in paying the fee of Mr. Dean; that he was derelict in conferring with Mr. Dean. Ordinarily, it is inappropriate for this court to inquire into those questions in the absence of evidence of intention to use such circumstances as a subterfuge for a continuance. We must consider appellant’s rights from the date of the selection of his court-appointed counsel.

We conclude appellant was entitled to a reasonable continuance and that the trial court abused its discretion in overruling appellant’s motion for continuation.

The judgment is reversed with direction to grant a new trial.


author: MONTGOMERY, Judge.

text:
    Wayne ROSE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Paul E. Hieronymus, McKee, for appellant.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Wayne Rose was convicted of maliciously and willfully cutting and wounding Hansel Clemmons with the intent to kill in violation of KRS 435.170(2). He was sentenced to two years’ confinement. He urges on appeal that he was entitled to an instruction that he was too drunk to possess the specific intent required under the statute.

Clemmons testified that appellant started a fight with him, stabbed him three times in the chest with a knife, and appeared to be drinking. There had been no previous trouble between them. Other witnesses testified that appellant appeared to be drunk or drinking. Appellant said that he was so-drunk he did not remember anything that happened between him and Clemmons.

The jury was instructed under KRS 435.170(2), maliciously cutting and wounding, and also under KRS 435.180, cutting and wounding “in a sudden affray or in sudden heat and passion, without previous malice.” The latter offense is a degree of the offense denounced by KRS 435.170 in so far as they both deal with cutting and wounding. Gillum v. Commonwealth, Ky., 121 S.W. 445; Lewis v. Commonwealth, 156 Ky. 336, 160 S.W. 1061.

The giving of such instructions has been expressly approved when the accused claimed drunkenness as a defense. Volz v. Commonwealth, 236 Ky. 88, 32 S.W.2d 714; Cummins v. Commonwealth, Ky., 344 S.W.2d 611. In Blackburn v. Commonwealth, 200 Ky. 638, 255 S.W. 99, quoted with approval in Cummins, it was said:

“ * * * where intent or purpose is an element of the crime the fact of drunkenness is admissible to show absence of the intent or purpose, and if the effect of such evidence is to lessen the offense, the accused is entitled to an instruction on the lesser and included offense, * *

For further discussion see Roberson’s Criminal Law, Section 59, pages 82b-84; DeBerry v. Commonwealth, Ky., 289 S.W.2d 495, cert. den. 352 U.S. 881, 77 S.Ct. 105, 1 L.Ed.2d 81; and authorities cited therein.

Under the authorities so cited, drunkenness does not excuse the doing of the criminal act in this type offense but may serve to reduce the degree of the offense. A distinction is made between cases “wherein a felonious intent must be shown to constitute the offense and those cases where the act done constitutes the offense.” Ter-hune v. Commonwealth, 144 Ky. 370, 138 S.W. 274. The instructions given were adequate.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    James KING, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    James King, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Upon his plea of guilty to a charge of obtaining money by false pretense (KRS 434.050) James King was sentenced to imprisonment for a term of 18 months. King made a motion to vacate that sentence (RCr 11.42) and the motion was overruled without an evidentiary hearing. He appeals. We would be justified in dismissing the appeal for King’s failure to file any brief in this court, but we are treating his motion to vacate, and the grounds asserted in it, as his brief in this tribunal. King asserted five grounds in his motion to vacate: (1) “Facts and evidence, does (sic) not charge a crime with felonious intent to defraude” (sic); (2) his retained counsel “ * * * did not perform his duties, for which he was retained thus proving himself ineffective;” (3) “Through coercion, movant was badgered and enticed by his counsel, and the Commonwealth (sic) Attorney to enter guilty plea; (4) movant was never informed of the nature of the charge against him, “or the penalty thereto;” (5) “Mov-ant states that he was returned from the State Penitentiary on February 17, 1965, taken directly before the Court to stand trial, without any time whatsoever to prepare his defense with counsel, other than the short period, when counsel and the commonwealth (sic) attorney, coerced, badgered and enticed movant to plead guilty, rather than stand trial.”

The trial court correctly overruled the motion to vacate without affording an evidentiary hearing. “Grounds” for relief, as advanced by King, are so nebulous and vaporous as to be meaningless. In none of them does he make any factual averment—all of them consist of mere conclusions.

The first “ground” challenges the insufficiency of evidence. That is not a basis for relief under RCr 11.42, but if it were the plea of guilty precludes it here. Humphries v. Commonwealth, Ky., 397 S.W.2d 163.

As noted in Humphries and in Lawson v. Commonwealth, Ky., 386 S.W.2d 734, the other allegations by the appellant were too vague to justify an evidentiary hearing.

The trial orders relating to appellant’s conviction reflect that he was arraigned on August 13, 1964, at which time the nature of the charge against him was made known to him. At the arraignment appellant informed the court that he had his personally retained counsel. He appeared with the same counsel (an attorney well versed in the practice, especially including criminal law) on February 17, 1965, and entered his plea of guilty. The trial record shows that on March 11, 1965, appellant appeared before the trial judge for sentencing, and offered no reason why the judgment and sentence should not be pronounced against him when afforded an opportunity to do so.

In the face of the recitations of the trial court’s record—standing unchallenged by the appellant—the naked averment of legal conclusions as to “coercion” and “badgering” do not suffice to present an issue for decision at a hearing.

Upon the authority of the cases cited, plus numerous others of like import, we hold that the trial court properly overruled appellant’s motion to vacate. See Ringo v. Commonwealth, Ky., 391 S.W.2d 392; Oakes v. Gentry, Ky., 380 S.W.2d 237; Jennings v. Commonwealth, Ky., 380 S.W.2d 284; O’Malley v. United States, 285 F.2d 733 (6th Cir., 1961); United States v. Bradford, 238 F.2d 395 (2nd Cir., 1956), cert. den. 352 U.S. 1002, 77 S.Ct. 558, 1 L.Ed.2d 546; Burton v. Commonwealth, Ky., 394 S.W.2d 933; Willoughby v. Commonwealth, Ky., 406 S.W.2d 725; Williams v. Commonwealth, Ky., 405 S.W.2d 17; and decisions cited and discussed therein.

The judgment is affirmed.


author: STEWART, Judge.

text:
    Walter A. HAMMERSHOY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    See also 398 S.W.2d 883.
    Francis Dale Burke, Joseph W. Justice, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., Joseph Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

Walter A. Hammershoy, in forma pau-peris, appeals from his conviction of the offense of armed robbery and the life sentence imposed thereon. See KRS 433.140. He was indicted, together with four other individuals, Matt West, James Raines, alias Ronnie Seymour, alias Ronnie Huff, Bobby Ray Hackney, and William Lee (Happy) Coleman.

Three grounds are urged for reversal of the judgment entered on. the verdict of the jury: (1) That the testimony of the accomplices was not sufficiently corroborated to raise an issue which was submissi-ble to the jury; (2) that a prejudicial accomplice instruction was given; and (3) that an erroneous instruction on robbery pursuant to conspiracy was given to the jury-

On October 15, 1964, around 9:30 in the evening, Roy McMillan and Eli Adkins were at McMillan’s place of business on Shelby Creek in Pike County. Suddenly a man armed with a sawed-off shotgun entered, ordered them to put up their hands and took their billfolds containing approximately $487. The man left and went up the creek. McMillan at the trial described the robber and identified him as Ronnie Huff; he further stated that the day following this incident he saw appellant in the company of Huff.

The reasoning underlying appellant’s initial attack upon his conviction is that the evidence of two accomplices, named hereinafter, who testified as to his participation in the crime was uncorroborated, that such accomplice evidence was the sole basis upon which guilt was attached to him, and that if the accomplice evidence had been stricken no proof of guilt would remain.

An arrest was made of appellant, Matt West and Bobby Ray Hackney, the driver of the car, by two deputy sheriffs early in the morning of October 18th. At the time they were in a 1952 black Chevrolet on a public highway in Pike County. They were placed under arrest for alleged drunkenness and a search of the car was conducted. In the back seat a shotgun was found which was identified as the weapon used in the robbery. The car was established as the same vehicle that was driven to and from the scene of the crime on October 15th. Donald Dye was later proven to be the owner of the car and the shotgun.

Jay Justice, a hotel operator in Pike-ville, testified appellant, Matt West and a “tall fellow” registered at his hotel on October 10th. William Lee (Happy) Coleman later visited these men, according to Justice. Rodger Burgess, of the Pikeville police department, testified he saw appellant, Matt West and a “tall man” enter a restaurant in Pikeville on the 13th or 14th of October. The “tall fellow” or “tall man” was later identified as Ronnie Huff.

Matt West, introduced as a witness for the Commonwealth, testified that he, appellant, Ronnie Huff, Bobby Ray Hackney, William Lee (Happy) Coleman and Donald Dye agreed to carry out an armed robbery of Roy McMillan. James Raines, known to him as Ronnie Huff, was to be the trigger man. West stated that he and appellant stayed in the car while Huff went in, carried out the holdup and came back with the money. Thereafter the proceeds, he said, were divided among the five. Bobby Ray Hackney was also introduced as a witness for the Commonwealth and his testimony implicated all of the persons mentioned herein as parties to the crime.

Appellant did not testify in his behalf.

RCr 9.62 provides: “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. In the absence of corroboration as required by law, the court shall instruct the jury to render a verdict of acquittal.”

An accomplice is one who knowingly, voluntarily, and with common intent, unites with the principal in the perpetration of the crime, either by being present and joining in the criminal act, by aiding and abetting in its commission, or, if not present, by advising and encouraging the performance of the act. Durham v. Commonwealth, Ky., 398 S.W.2d 696; Clark v. Commonwealth, Ky., 386 S.W.2d 458; Head v. Commonwealth, Ky., 310 S.W.2d 285.

Appellant maintains that testimony which merely places him in the company of those who effectuated the crime, before and after the offense is committed, is not sufficient as corroborative evidence under RCr 9.62. In support of this position, he cites Hartsock v. Commonwealth, Ky., 382 S.W.2d 861, and Commonwealth v. Truglio, Ky., 371 S.W.2d 648. However, attention is called to the fact that in both of these cases this court held that this kind of evidence “without more” is not enough to sustain corroboration. Was there “more” evidence in the case at bar?

There is testimony pinpointing the weapon used in the crime and identifying the automobile employed in going to and from the place of the robbery. Such weapon was found in the rear seat of such automobile in which appellant, together with Matt West and Bobby Ray Hackney, was riding at the time he was apprehended. There is also testimony that appellant was in the company of the trigger man of the robbery on two occasions shortly before the holdup; once he stayed all night with him and another time he was seen entering a restaurant with him. Thus, the question is posed whether these circumstances, when considered together, would be sufficient to link appellant to the commission of the offense, although no one of them, standing alone, would tend to accomplish such a result.

This question was one for a properly instructed jury to determine, that is, whether, as was pointed out in Flora v. Commonwealth, Ky., 387 S.W.2d 15, the corroborative evidence was of such quality that a reasonable and unprejudiced mind could conclude that it tended to establish some fact that linked up the accused with the principal fact of the commission of the offense.

Did the trial court submit to the jury a correct accomplice instruction? The answer is no. Under “Instruction No. 4” the jury was permitted to decide whether Matt West and Bobby Ray Hackney were accomplices.

Appellant contends the evidence unerringly points the finger of guilt at each of these persons, and the trial court should have found as a matter of law that each of them was an accomplice. On the other hand, the Commonwealth asserts Bobby Ray Hackney planned to participate in the holdup but, because of fear or some other reason, withdrew before the criminal act was effectuated and it was afterwards consummated without his assistance.

It is not in dispute that Matt West was actively connected with the holdup from beginning to end. Bobby Ray Hackney testified he was present when the robbing of Roy McMillan’s place of business was talked about. On the night the crime was to be perpetrated he first drove the Dye car to the McMillan place but returned to a restaurant in Pikeville because, according to his statement as a witness, Ronnie Huff “backed out and I got scared myself.” Appellant, as shown by the testimony of Matt West, then took over the driving of the car. Meanwhile, Hackney waited at the restaurant and later met up with William Lee (Happy) Coleman and these two “rode around until about 1 o’clock.” Still later, he said he came in contact with Ronnie Huff who gave “Happy $50 to take him to Ashland and I went with Happy.” On October 18th, the day appellant, West and Hackney were taken into custody by the two deputy sheriffs, Hackney stated that appellant and West “got me to drive them over to Pound where they were going to rob another place.” All three of them, while making this trip, “got started to drinking and backed down.” They were on their way back from Pound when they were intercepted by the two officers.

The Commonwealth argues that Bobby Ray Hackney withdrew from participation in the holdup. The proof, we believe, does not sustain this contention. It is true he was not physically present when Roy McMillan and Eli Adkins were robbed; but his conduct, prior to and subsequent to the robbery, shows that he never disassociated himself from those connected with the criminal act.

In Roberson’s Criminal Law, § 209, p. 301, it is stated, in part: “ * * * where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice.”

We are of the opinion that under the evidence shown in the record, Matt West and Bobby Ray Hackney were accomplices as a matter of law. Therefore, a prejudicial error was committed when the jury-was allowed to determine this point. Had they been instructed that West and Hackney were in fact accomplices, the jury might have concluded enough evidence did not exist, apart from the accomplice testimony, which tended to connect appellant with the crime.

Appellant also complains of “Instruction No. 1” and “Instruction No. 2.”

The trial court in Instruction No. 1 told the jury, briefly stated, that if they believed from the evidence appellant conspired and agreed with others to carry out the holdup they should find him guilty and fix his punishment as specifically prescribed by the terms of that instruction. It is argued that the jury could, as so charged, find appellant solely guilty as the principal, although five persons were indicted for the offense which they were accused of plotting to commit.

Conspiracy is not charged in the indictment as to the involvement of the five alleged participants in the commission of the crime. However, in Ray v. Commonwealth, 230 Ky. 656, 20 S.W.2d 484, 66 A.L.R. 1297, it was held not to be error to instruct on conspiracy where the evidence authorized it, although conspiracy was not alleged in the indictment.

The conspiracy instruction in this case employed language that is approved, as to a single defendant when on trial, in Stanley’s “Instructions to Juries.” See Vol. 3, § 960(1), p. 293. If there be another trial and the evidence is substantially the same, Instruction No. 1 should be given.

Instruction No. 2, in one portion of it, is predicated upon the assumption that a jury could believe appellant himself could have personally carried out the holdup; in the other portion of it, the jury is told that he could be found under the evidence to have been an aider and abettor of the criminal act.

The evidence shows that Ronnie Huff alone was the trigger man. On the other hand, as there is testimony from which the jury could find appellant and Matt West went to the scene of the robbery with the actual perpetrator and stationed themselves nearby in order to watch and facilitate the escape of the holdup man, they could be considered “constructively” present and both could be held liable as an aider and abettor. Clark v. Commonwealth, 269 Ky. 833, 108 S.W.2d 1036.

Therefore, we conclude the trial court was without any basis in fact to warrant a charge to the jury that appellant could have been found guilty of robbing the two victims; but it is our view there was evidence upon which to bottom an instruction that he could be convicted as an aider and abettor of the robbery.

Wherefore, the judgment is reversed for further proceedings in conformity with this opinion.


text:
    Kepple ROLAND et al., Appellants, v. Sid BECKHAM et al., Appellees. Nettie HUGHES et al., Appellants, v. Jerry JONES et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.

      James W. Shepherd, Carrollton, for appellants Nettie and Danny Hughes.
    James C. Ware, Covington, William G. Reed, Carrollton, for appellants Kepple Roland and Board of Education of Owen County.
    James P. Hanrahan, Hafford E. Hay, Frankfort, for appellees Sid and David Beckham.
    John M. Berry, Sr., John M. Berry, Jr., Donald K. Floyd, New Castle, for appel-lees Beverly Nell Bell and Billy Jo Beverly.
    Charles E. Carter, Owenton, William A. Carter, Bedford, for appellees Glen Cox, Mary Burke, Robert Burke, Johnny Hammond, Herschel Hensley, Bobby Lusby, Jerry Jones, Donnie Marksberry, Mike Keith, Careyon Sipple, Kathy Smither, Jerry Thornton, Phillip Trinkle.
    John J. Blackburn, Covington, for appel-lee Gary Smith.
    Herbert C. Howard, Louisville, for ap-pellee Bonnie Barbour New.
    William E. Johnson, Frankfort, for ap-pellees R. W. and Mary Riddle.
    William E. Wehrman, Wehrman & Wehrman, Covington, for appellee estate of Claude Ferrell.
   DAVIS, Commissioner.

These consolidated cases arise from an accident which occurred in Owen County in which a school bus and an automobile were involved. There were two trials of the cases in circuit court. The jury’s verdict in the first trial was in favor of the twenty-one students who were passengers on the bus against the owner and driver of the automobile and against the owner of the school bus and his lessee, Board of Education of Owen County (hereinafter the bus interests). The same jury’s verdict made an award against the owner and operator of the automobile in favor of the estate of the school bus driver, who died as the result of injuries sustained in the accident. The trial court set aside the verdicts rendered in the first trial on a finding that they were excessive; a new trial was ordered at which only the issue of damages was submitted. The second trial resulted in verdicts less than those returned at the first trial. These appeals present numerous assignments of error which shall be stated herein, after a preliminary recitation of the factual background.

On February 25, 1963, a school bus owned by Kepple Roland, driven by Claude Ferrell, and under contract with the Board of Education of Owen County for transportation of pupils was being driven east-wardly on Kentucky Highways 22 and 227 en route to the Owen County High School. There were twenty-two pupils aboard the bus. The highway was wet from recent snow, although it appears that there was no appreciable accumulation of snow on the roadway proper.

When the bus was about a mile and a half east of Owenton a Thunderbird car, driven by seventeen-year-old Danny Hughes, also a pupil at Owen County High School, overtook the school bus and passed it. There is contrariety in the evidence (as disclosed at the first trial) as to whether there was any collision between the car and the bus as the car was passing the bus. In any event, the car passed ahead of the bus and ran off the road to its right. The bus veered to its right, just after the car passed, and the front portion of it crashed into a tree just off its right side of the highway. The left rear wheels of the bus remained on the extreme right side of the road after the bus had come to rest against the tree.

The insurance company carrying the liability coverage on the Hughes car precipitated the lawsuit by filing a complaint naming as defendants all of the potential claimants, asking that all of them be required to set up their claims. One of the students made no claim; the others filed claims, as did the personal representative of the estate of Claude Ferrell, the bus driver.

THE APPEAL RELATING TO THE BUS INTERESTS

Judgment went against the appellants, Kepple Roland (owner of the school bus) and the Board of Education of Owen County, jointly and severally, along with Nettie Hughes (owner of the Thunderbird) and her son, Danny, driver of the car. On this appeal Roland and the Board of Education present the following grounds upon which they consider themselves entitled to a reversal of the judgments against them: (1) Error in excluding evidence of a statement made by Claude Ferrell; (2) the driver of the school bus was guilty of no negligence; (3) plaintiffs were permitted to inject the fact that appellants were covered by liability insurance; (4) there was no evidence of probative value showing any negligence of appellants; (5) verdicts in favor of the bus passengers against the owner and operatives of the bus are inconsistent with the jury’s verdict awarding damages to the estate of Claude Ferrell, the bus driver.

The first point advanced by appellants Roland and the Board of Education relates to the court’s refusal to admit evidence of a statement made by Claude Ferrell, the bus driver, shortly after the accident. The statement, as purportedly made to witness William DeWitt, Director of Pupil Personnel for the Board of Education of Owen County, was placed in the record by avowal. In relating the incident, the witness had said that he approached the school bus as it was at rest against the tree, before any of the pupils had gotten out of the wrecked bus, and that Ferrell made a statement to him:

“Q.45 What did he [Ferrell] say concerning the bus?
A. I asked him first how he was and he said he was pinned to the bus and that his leg hurt him. I said ‘What happened to you^ Claude?’ and he said ‘He hit me and knocked me over here,’ and nodded toward the car in the field.
Q.46 Did you see the car in the field toward which Claude Ferrell nodded at that time?
A. Yes, that was the first time I had seen the car in the field.
Q.47 What kind of a car was it, if you know?
A. It was a Thunderbird. A fairly new model.”

Other testimony of the witness lends support to the fact that the foregoing statement of Ferrell was made within less than five minutes after the accident occurred. Appellants Roland and Board of Education urge that the statement made by Ferrell was admissible as part of the res gestae, and cite Ison v. Mullins, Ky., 336 S.W.2d 599 in support of their contention. The appellees counter by calling attention to Honaker v. Crutchfield, 247 Ky. 495, 57 S.W.2d 502, and Cumberland Gasoline Corporation v. Fields’ Adm’r, 258 Ky. 417, 80 S.W.2d 28. For appellees it is urged that Ferrell’s statement was in response to interrogation, and thus lost its spontaneity.

Whether a particular statement may be admissible as a res gestae exception to the hearsay rule has arisen many times in this and other jurisdictions. The general rules are fairly well established, but their application in particular cases raises difficulties, as is to be seen from the many texts and court opinions on the subject. In Preston and Caldwell v. Commonwealth, Ky., 406 S.W.2d 398 (decided June 10, 1966) is found a recent exposition of the factors to be considered when testing the admissibility of a claimed res gestae statement. It is particularly noteworthy that spontaneity, as opposed to mere proximity in time, is a most important consideration. Some of the elements which may point to lack of spontaneity are: “ * * * lapse of time between the main act and the declaration, the opportunity or likelihood of fabrication, the inducement to fabrication, the actual excitement of the declarant, the place of the declaration, the presence there of visible results of the act or occurrence to which the utterance relates, whether the utterance was made in response to a question, and whether the declaration was against interest or self-serving.” 31A C.J.S. Evidence § 419, p. 1029.

There is no doubt that the quoted statement qualifies as to time and place. That it is self-serving is not sufficient to destroy its quality as res gestae. Although the statement was in response to an inquiry it hardly may be said that there was such an “interrogation” as would remove the de-clarant from the mental attitude of expostulation influenced by the 'excitement and stress of the event itself. It is our view that the proffered evidence should have been admitted as part of the res gestae. It then remains to inquire whether the rejection of the evidence was prejudicially erroneous.

Of course the refusal of the evidence could not have affected appellants Hughes adversely, since it merely tended to place culpability on Hughes, and the jury found Hughes blameworthy anyway. But the same may not be said as to the jury’s finding against the bus interests. It will be remembered that there was dispute in the evidence as to whether the car collided with the bus at all. The only basis upon which the jury could have found against the bus interests was to conclude that the bus driver had failed in the exercise of his high degree of care after the encounter between the car and bus. It may be that the jury could have found that the collision between the vehicles, if any, was so slight as not to afford causative basis for the erratic course of the bus after the collision. The jury may have drawn the inference from the testimony that the bus driver had ample opportunity to reduce the speed of the bus, or to regain full control of its movements, or both, and thus have prevented the collision with the tree and the resulting injuries. It seems clear that the jury’s decision in this regard may well have been influenced by its own conclusion as to the force and extent of the collision — therefore, the res gestae statement of Ferrell was of vital significance and should have been submitted to the jury as touching'on the question of liability of the bus interests.

The relevance of the Ferrell statement, as we have said, pertains to the question of liability—not the question of damages. We are reversing so much of the judgment as imposes liability upon appellants Roland and the Board of Education, for a new trial on the question of liability only. If the jury’s verdict at a new trial fixes liability upon these bus interests, the trial court will award judgment against them in the amounts fixed in damages by the verdicts at the second trial. If the bus interests are absolved of liability by the verdict on a new trial, judgment will be entered in their favor. It is our view that the granting of a partial new trial in the circumstances presented comports with the purpose of CR 59.01. Cf. Scuddy Mining Company v. Couch, Ky., 295 S.W.2d 553; 14A Ky.Digest, New Trial,

The second point advanced by appellants Roland and the Board of Education is substantially included in the fourth point they present, and we shall discuss them together. The appellants assert that the physical facts show conclusively that the bus driver was free of negligence. We do not think so. There was dispute as to whether the bus was entirely on its side of the road when the Hughes car was passing; the accumulated “slush” in the roadway was not so convincingly established as the point of impact as to foreclose negligence on the part of the bus driver. In any event, the evidence is clear that it was not the impact between the car and the bus which caused the injuries. The jury had a right to believe that as between the bus driver and the passenger there was a failure on the part of the bus driver to exercise the high degree of care owed the passengers—as distinguished from the rules of ordinary care respecting the reciprocal duties of the bus driver and the operator of the car. Appellants rely upon Greyhound Corporation v. Allen, Ky., 353 S.W.2d 558. Significantly it is to be observed that in that case the court remarked:

“Apparently it is plaintiffs’ argument that if the driver had better control of the bus he would not have run off the road and turned over. The answer is that the driver’s subsequent loss of control was clearly shown to have been caused by the impact and not by the earlier manner of operating the bus.” Id., Ky., 353 S.W.2d at p. 560 (Emphasis added.)

In the case at bar it is not shown—clearly or otherwise—that the subsequent loss of control was caused by the impact. It is our view that the evidence was sufficient to warrant submission to the jury of the issue as to negligence of the bus driver toward the passengers on the bus.

During the course of the trial some of the student claimants gave evidence which conflicted with prior written statements they had given. Counsel for appellants Roland and the Board of Education undertook to impeach these witnesses by reading excerpts from the prior statements. Thereupon it was brought out by interrogation of the students that the statements had been furnished to an adjuster for the insurance company carrying the liability insurance on the bus. The court admonished the jury that it could not consider the matter of insurance as affecting the merits of the case. We think this case is ruled by the rationale of Triplett v. Napier, Ky., 286 S.W.2d 87. The matter of insurance was not injected into the case except in effort to show bias and interest of the adjuster who took the statements—statements which contained recitations favorable to the bus interests, and which recitations were asserted by the witnesses to be incorrect. The adjuster did not testify in the case. In these circumstances, we hold that there was no error in permitting the explanation of the statements and the circumstances in which they were given.

In this same connection, it is claimed in brief for appellants Roland and Board of Education that one of appellees’ counsel made inflammatory remarks suggesting insurance in his closing argument. The short answer to this is that there is no transcript of the argument in the record, nor any showing that the claimed argument was made. The claimed error is not available for appellate review.

The final point advanced by the bus appellants is their assertion that the verdict in favor of the Ferrell estate is inconsistent with the verdicts in favor of the students. Reliance is had upon Greyhound Corporation v. Leadman, Ky., 285 S.W.2d 177, but the case is not in point. In Lead-man the plaintiff had sued the bus driver and the bus owner; the jury’s verdict absolved the driver but imposed responsibility on the owner. Obviously the owner’s liability was purely derivative, so the verdict absolving the driver necessarily absolved the owner. Here the situation is different. The passengers did not sue the bus driver, nor did the verdict undertake any finding of his liability to them. The litigants appear to recognize that a different degree of care was due from the bus driver (and the owner and lessee of the bus) to the passengers than was due from the bus driver to the driver of the Hughes car. The “double-standard” of care as between passengers and highway traffic was recognized in Conley’s Adm’r v. Ward, Ky., 291 S.W.2d 568. We think the evidence in the case at “bar clearly warrants the inference that although Hughes’ negligence precipitated the erratic actions of the bus, the driver of the bus had ample opportunity to regain control of the vehicle or reduce its speed or both, so as to avoid injury to the passengers. Thus the verdict is not inconsistent on its face.

THE HUGHES APPEAL

In their separate appeal Danny and Nettie Hughes present three grounds upon which they seek a reversal of the judgments against them: (1) The court erred in per•mitting recovery for permanent injury as to appellee Bonnie Barbour New; (2) the -damages awarded in “several of the cases” are so disproportionate to the injuries suffered as to indicate passion and prejudice of the jury against the appellants; and (3) improper closing argument and prejudice in calling defendants as witnesses, as if on cross-examination.

In answer to the first point raised by these appellants it is noted that the instruction given by the trial court did not authorize recovery in behalf of appellee New for permanent injuries. The word “permanent” does not appear in the instruction. This has particular significance in this case because there were instructions in the case, relating to other .claimants, in which allowances for permanent injuries were submitted. The total award to Bonnie Barbour New was $15,000. Her medical expenses were shown to have been nearly $1,200; she suffered fractures of both arms. The fractures in her left arm required surgery for open reduction; she was hospitalized on two separate occasions incident to setting the bones in her arms. Medical evidence reflected that her fractures have healed satisfactorily and that she should suffer no permanent disability or impairment of function in her arms. Her left arm bears four surgical scars incident to the open fracture reduction, and the evidence indicates that these scars will permanently exist. At the time of the second trial in August, 1964, she testified that she continued to experience pain in her arms. She told of suffering from a nervous condition resulting as an aftermath of the wreck experiences. She sustained other relatively minor injuries, but the chief injuries were to her arms. We are unable to say that the verdict appears to us at first blush as having been rendered as the result of passion or prejudice. There is no doubt that the claimant has suffered extensive pain and discomfort, both mental and physical. The entire incident was a traumatic one, calculated to affect her mental and physical well being. While we regard the award as liberal, we are not persuaded that it is excessive. Cf. Siler v. Williford, Ky., 375 S.W.2d 262 (1964), in which an award of $15,000 was upheld. We regard the present case as substantially indistinguishable from the Siler decision.

Coupled with the prime assault on the verdict in favor of appellee Bonnie Barbour New, the appellants present a “shotgun” attack on all the verdicts for the claimants. The chief argument is that inasmuch as the jury returned no verdict less than $300, and in some of those verdicts for $300 the injuries were minimal, there is thereby demonstrated a pervading taint in all the verdicts. We are not favored with citation of authority to support this argument, nor are we persuaded by it. We are indisposed to cull this voluminous record for minute inspection of each claim; if appellants seriously contend that the verdicts are excessive they should point out the basis for their argument. In their brief the appellants Hughes make brief reference to verdicts of $300 each returned in behalf of Johnny Hammond, Sidney Beckham, Phillip Trinkle, Mike Keith and Jerry Thornton. They omitted reference to the $300 award to R. W. Riddle. It is true that the personal injuries sustained by these claimants were not severe, and the verdicts so indicate. They did have some minor injuries, and underwent the relatively harrowing experience of the accident. We have no disposition to regard the verdicts as to them as so excessive as to reflect passion or prejudice.

The same view is taken of the other verdicts mentioned in brief for appellants Hughes, namely: David Beckham, $600; Glen Cox, $750; Robert Burke, $500. As respects the award of $3,000 in behalf of Bobby Lusby, we consider this to have been a liberal award, but not an excessive one. Despite the medical testimony of one physician that he could find no “objective symptoms” in this claimant, there was other medical proof indicating that the claimant had sustained such a blow on his head as resulted in a “personality change.” We are disposed to believe that the appellants Hughes regard the other verdicts in behalf of the bus passengers as temperate since they do not specifically attack them. It is not to be presumed that the jury rendered temperate verdicts in ten of the claims of the students while evincing passion and prejudice as to eleven of them.

The appellants Hughes level a somewhat more concentrated attack on the $20,000 verdict returned in favor of the estate of Claude Ferrell, the bus driver. It is pointed out that the actual earnings of Ferrell aggregated only $850 per year; he was 56 years old at the time of his death, with an expectancy of 12.3809 years. Appellants cite Louisville & N. R. Co. v. Stephens, 298 Ky. 328, 182 S.W.2d 447, as authority for reversal here. While some of the reasoning in the cited authority is apposite it is well to observe that the quantum of damages recoverable under the Federal Employers’ Liability Act (the pertinent basis of the claim in Stephens) is substantially different from the measure of damages for wrongful death under KRS 411.130. The appellants Hughes correctly recognize our rule in such cases by citing Spangler’s Adm’r v. City of Middlesboro, 301 Ky. 237, 191 S.W.2d 414, in which it is stated that the measure of damages in a wrongful death action is “ * * * the destruction of the deceased’s power to earn money.” For Ferrell’s estate it was shown that he worked at his income-producing job, driving the school bus, about 20 hours per week. This averages about $1.35 per hour for the hours worked. The evidence reflects that the decedent’s wife had been an invalid for several years, and that he devoted virtually his entire time, except while driving the school bus, in attending her. It is clear that he had a legal and moral duty to provide this type of care for his invalid wife. It would seem immaterial whether he worked “out” and earned the money to hire the tasks done, or stayed at home and performed them himself. As noted, our rule of damages in such cases is the destruction of the power to earn money — not the destruction of decedent’s income from the particular work in which he was engaged at the time of the wrongful death. Decedent’s potential for earning; money is a proper consideration. Cf. Temperly v. Sarrington’s Adm’r, Ky., 293 S.W.2d 863, 868-869. Obviously, in case of a claim for wrongful death of a small child the potential for earning is the only gauge, but we have held frequently that recovery may be had in such cases. Cf. McCallum v. Harris, Ky., 379 S.W.2d 438.

Another point raised by appellants Hughes relates to an alleged remark in closing argument by one of counsel for some of the bus passengers. However, the argument complained of is not in the record; there is no showing of record that any objection was made to the argument until after its completion — and the showing then is not sufficient to incorporate into the record, by affidavit or otherwise, the substance of the remarks, or whether they were in response to arguments of opposing counsel. In this state of record, there is no question presented for appellate review. Ramey v. Ruth, Ky., 376 S.W.2d 292.

The final point raised by appellants Hughes pertains to what they urge as improper conduct in calling appellants Danny Hughes and Kepple Roland to the witness stand. This occurred at the second trial when only the issue of damages was being tried. The trial judge required the claimants to explain what they expected to prove by these witnesses, and upon being informed that they proposed to elicit evidence relating to the force of the collision between the car and the bus, the court declined to permit examination of the witnesses. Appellants contend this was prejudicial in that it exhibited these persons before the jury. The argument is completely without merit, because these litigants, it must be presumed, were present in court anyway during the entire trial. We are at a loss to understand how it could be suggested that error prejudicial to the appellants was thus committed.

The judgments are affirmed upon the appeals of Danny Hughes and Nettie Hughes, and reversed upon the appeals of Kepple Roland and Board of Education of Owen County, with directions to grant the latter appellants a new trial upon the issue of liability only.

      . Cf. Stanley’s Instructions to Juries, Vol. 2, Sections 584, 585, and authorities there cited.


author: WADDILL, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Charles A. GOEHRING, Ancillary Administrator of the Estate of Joseph M. Hartfield, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Department of Highways, Madisonville, Thomas L. Withers, Henderson, for appellant.
    William M. Deep, King, Deep, Branaman & Hunt, Henderson, for appellee.
   WADDILL, Commissioner.

Joseph M. Hartfield owned 287 acres adjacent to and south of the Ohio River and west of U.S. Highway #41. For the purpose of building non-access approaches to a new bridge, the Commonwealth condemned a trapezoid-shaped strip of land alongside U.S. #41, containing 21.14 acres. In addition the Commonwealth acquired a temporary easement on 2.75 acres.

The landowner was awarded $4,528 in the Henderson County Court. Both parties appealed to the Henderson Circuit Court where the landowner obtained a verdict and judgment of $18,500 for the land taken in fee and $2,000 for the temporary easement, a total of $20,500.

On its appeal the Commonwealth urges that the award of damages was so excessive as to require a reversal of the judgment and that the circuit court erred in: (1) Permitting evidence of limited access; (2) permitting evidence of potential commercial use; (3) refusing to permit evidence of the subsequent private sale of the remaining portion of the landowner’s farm, and (4) not requiring the jury to separately find the before and after values.

The farm consisted of land along the Ohio River which was subject to seasonal flooding. Its only improvement was a small house not affected in this action. Only about 93 acres on the south and west sides of the farm could be cultivated and the remainder (including that involved in this action) was characterized as wasteland and woodland. The landowner’s two expert witnesses testified that the differences in the fair market value of the 287-acre farm before and after this condemnation were $30,000 and $34,000. One of the witnesses gave no basis for his valuation opinion, while the other witness relied on sales not shown to be comparable, particularly with reference to regular flooding. The latter witness also considered that loss of access had reduced the value of the landowner’s remaining property. Since it was shown that the farm had reasonable access to the highway system via Kentucky Highway #144, loss of access was an incompetent factor. The proper procedure to follow in these circumstances was set forth in Commonwealth, Department of Highways v. Adkins, Ky., 396 S.W.2d 768. The estimates of value of these witnesses have insufficient probative value to support the award of $18,500 for taking of these 21 acres. Commonwealth, Department of Highways v. Picklesimer, Ky., 397 S.W.2d 159. Hence the award is excessive.

Moreover, the award of $2,000 for a temporary easement on 2.75 acres is equal to $727 an acre and yet the award (itself excessive) for the land taken in fee is equal to $875 per acre. Ordinarily the measure of damages for a temporary easement is its reasonable rental value. Commonwealth, Department of Highways v. Hunt, Ky., 399 S.W.2d 294; Commonwealth, Department of Highways v. Ray, Ky., 392 S.W.2d 665. In the instant case the jury awarded nearly as much per acre for the easement as for the fee. The easement was taken to remove a portion of an old railroad embankment and the landowner’s witnesses based their value of this easement on the commercial value of the dirt which the Commonwealth removed from it. The landowner now urges that this use made the taking something other than a temporary easement and relies on Commonwealth, Department of Highways v. Givens Brothers, Inc., Ky., 298 S.W.2d 867. In that case we treated the taking of a tract for a temporary easement as the taking of the fee because the changes made by the Commonwealth in the land subject to the temporary easement prevented the landowner from using it. In the instant case the removal of the embankment did not affect its use. Therefore, the award for the temporary easement is also excessive.

The judgment must be reversed because of excessive damages. Since there may be a new trial we make two observations: (a) If the remainder of this farm was sold within a reasonable time after this taking, its sale price is admissible as a comparable sale unless lack of comparability is established. Commonwealth, Department of Highways v. Gibson, Ky., 401 S.W.2d 71; (b) the instructions in Commonwealth, Department of Highways v. Priest, Ky., 387 S.W.2d 302, should be submitted to the jury. We find the other ground of alleged error to be without merit.

The judgment is reversed with directions to grant a new trial.


author: CULLEN, Commissioner.

text:
    Carr FIELDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.

      Neville Smith, Manchester, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

In January 1966 the Clay Circuit Court granted a hearing to Carr Fields, and appointed counsel for him, on his motion under RCr 11.42 to set aside a 1953 judgment of conviction of rape under which he is serving a life sentence. After the completion of the hearing the court overruled the motion, from which ruling Fields has appealed.

The main ground upon which Fields sought relief was that he was convicted on perjured testimony. He produced an affidavit executed by the prosecutrix in 1954, some 18 months after the trial, in which she stated that she had falsely testified against Fields and that in fact he was not guilty. The asserted ground is not one on which relief is available under RCr 11.42. See Bell v. Commonwealth, Ky., 395 S.W.2d 784; Moore v. Commonwealth, Ky., 394 S.W.2d 931; King v. Commonwealth, Ky., 387 S.W.2d 582.

As another ground for relief Fields alleged that he did not have adequate assistance of counsel, in that the two attorneys appointed for him, although appointed 20 days before the trial, did not confer with him until the day of trial, and then only for a few minutes. However, at the hearing on the RCr 11.42 motion the two attorneys testified that they talked with Fields for some time on the day of their appointment, that they acquired all necessary information, and that they made preparation for trial accordingly. We think the evidence supports the lower court’s finding that Fields had adequate representation.

The judgment is affirmed.


text:
    George LYNN and Johnny Paul Lynn, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.

      Louis V. Mangrum, Mayfield, for appellants.
    Robert Matthews, Atty. Gen., Joseph Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

George Lynn and Johnny Paul Lynn appeal from a judgment of the Graves Circuit Court imposing upon each of them a five-year prison sentence pursuant to a verdict finding them guilty of possession of burglary tools with the intention of using them burglariously, KRS 433.120. Previously the two Lynns, together with one Ben Ray Taylor, were convicted in the Calloway Circuit Court of storehouse breaking, committed a few hours before their arrest on the burglary-tool charge. The Calloway judgment was affirmed by this court in Taylor v. Commonwealth, Ky., 394 S.W.2d 895.

The appellants’ first contention is that their objections to the admission of evidence as to the discovery of burglary tools in their car should have been sustained because the discovery was by an illegal search. This same contention was made on the appeal from the judgment in the storehouse-breaking case, and what was said in our opinion in that case, 394 S.W.2d 895, 896, is an adequate answer here.

After the appellants were arrested their car was searched and a pistol was found on the floor under the right front seat; also a box of mechanics’ tools was found in the trunk. In his opening statement at the trial the Commonwealth’s attorney mentioned the finding of the pistol and the tools, and said that the tools had been identified as those stolen from a filling station around a week before the night the appellants were arrested. The appellants argue that the references to the pistol and the box of tools were improper and prejudicial and that their objections should have been sustained. In our opinion the references were proper because evidence as to the pistol and the stolen tools was admissible to show that there was a burglarious intent in the possession of the wrecking bars which the arresting officers saw on the floor of the appellant's’ car and which were charged as being burglary tools. See Reagan v. Commonwealth, 217 Ky. 81, 288 S.W. 1025; Lambert v. Commonwealth, 219 Ky. 806, 294 S.W. 466; Fennen v. Commonwealth, 240 Ky. 530, 42 S.W.2d 744; Quarles v. Commonwealth, Ky., 245 S.W.2d 947.

The appellants contend that the trial court erred in refusing to send a special bailiff to bring in a witness who had not responded to subpoena, or in not granting a continuance because of the absence of that witness. We think there was no error because (1) the appellants did not cause the subpoena to be issued until the night before the trial; (2) the court ruled favorably on the appellants’ motion (which appeared to have been in the alternative to a continuance) that the testimony of the witness given at the trial in Calloway County be read as his testimony on the instant trial; and (3) the testimony of the witness as read was not helpful to the appellants’ case and there was no showing that had the witness appeared in person his testimony would have been any more helpful.

Appellants’ final contention is that numerous prejudicial comments were made by the Commonwealth’s attorney in his closing argument. Only two of the comments require any discussion (the others were innocuous). One comment was, “ * * * twelve good men in Calloway County said they were guilty—and we are not trying them for breaking and entering that place.” This reference to the jury verdict in the storehouse-breaking trial in Calloway County clearly would have to be considered improper and prejudicial were it not for the fact that the appellants, in their own testimony, had brought out the fact of their conviction in Calloway County. Since they chose to put the conviction in evidence they cannot complain of the reference to it in the closing argument.

The other questionable comment was to the effect that the Commonwealth had not introduced Ben Ray Taylor as a witness because later at the same term of court, with the same jury panel, he was to be tried on a bank robbery charge and the Commonwealth did not want to prejudice him in the bank robbery case by presenting him as a witness in the instant case. This of course was improper but it cannot be considered prejudicial because the appellants throughout the trial undertook to point the finger at Taylor as the real culprit (they being his innocent dupes); anything that made Taylor, individually, look bad was not harmful to their defense.

The trial court ruled that the appellants’ counsel must put in writing his objections to the closing argument. Under RCr 9.22 we think oral objections are sufficient; however, no prejudice is shown to have resulted here from the requirement of written objections.

The judgment is affirmed.


text:
    Sarah Rita CHANDLER et al., Appellants, v. Glen CHANDLER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.

      James S. Secrest, Scottsville, for appellants.
    No attorney for appellee.
   MONTGOMERY, Judge.

Sarah Rita Chandler and James S. Se-crest, her attorney, appeal from a judgment entered in a divorce action with her husband, Glen Chandler. In her behalf it is urged that the allowance for alimony and' separate maintenance and child support for the wife and an eleven-year-old child should have been separated and is inadequate. Her attorney urges that the allowance for his services is also inadequate.

Sarah Rita was a resident and citizen of Casablanca, Morocco, where she met and married Glen. She was a school teacher there. She is now a naturalized citizen of the United States.

Their marital trouble seems to have begun after they came to Scottsville to live. Glen’s affection for a former girl friend was rekindled. Each became divorced and they married. Glen and his second wife now reside in Indiana. Sarah Rita has been attending college in order to become qualified to teach school here.

In Hunt v. Hunt, Ky., 394 S.W.2d 743, it was held that “In fixing the amount the wife should receive, the problem is to determine an allowance which is a fair substitute for marital support and maintenance.” Reference is made therein to the various cases and considerations involved. Under such rules it appears that proper allowance was not made for the first wife here. It might be added that the right of a divorced husband to marry again is recognized, but he should not lose sight of the obligations flowing from the first marriage which are entitled to priority.

In view of appellee’s failure to file a brief, the judgment is reversed, pursuant to RCA 1.260(c), with directions to reconsider allowances made, with the view to making them more favorable to the appellants.

Judgment reversed.


author: CLAY, Commissioner.

text:
    Ruth OWENS et al., Appellants, v. C. E. CLEMONS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    As Modified on Denial of Rehearing Dec. 16, 1966.

      Charles T. Walters, Winchester, for appellant.
    Beverly White, White, McCann & Stewart, Winchester, for appellee.
   CLAY, Commissioner.

Appellant plaintiffs, employed by appel-lee as waitresses, filed this suit to recover wages due under a mandatory wage order issued by the Commissioner of Labor, effective October 1, 1962. The trial court allowed plaintiffs the difference between the lower wages paid and the minimum prescribed, but credited the appellee employer with (1) the value of meals eaten at appellee’s establishment, (2) the .time consumed in eating those meals, and (3) vacation pay. The court declined to allow plaintiffs a reasonable attorney’s fee. They and their attorney appeal.

Under the employment arrangement entered into prior to the effective date of the minimum wage order, appellee furnished certain meals to his employees without making a charge therefor. In this proceeding the parties stipulated the value of the meals. The trial court was of the opinion that since they constituted a part of the employees’ compensation, their value should be added to the actual wages paid in determining the extent of underpayment.

The employees contend this is an obvious violation of the wage order, which provides in part in paragraph 14 the following:

“No employer shall make deductions for meals and/or lodging against the minimum wage due employees. The employer and employee may voluntarily reach an agreement as to the consumption of meals and/or lodging by an employee and the price of same, but in no case shall the employee be charged more than the amounts stipulated by Administrative Regulations as filed with the Legislative Research Commission.”

It seems clear the objective of the first sentence is to fix a legal obligation on the employer to pay at least the minimum wage in dollars. Thus when the minimum wage prescribed is 70 cents an hour (as in this case), the order would be violated if the employer undertook to pay 60 cents an hour and furnish meals free. On the other hand, paragraph 14 recognizes the validity of a specific agreement between the employer and the employee whereby the employee obligates himself to pay a fixed price for meals taken. In practical application this would authorize the employer to offset the wages due by the amount owed for meals.

A valid agreement under this section of the order must necessarily create an indebtedness to the employer based upon a fixed price for meals furnished. While admittedly the meals given the employees in this case constituted a form of compensation to them there was no agreement establishing either their price (or value) or creating an obligation to pay for them. The judgment, in giving the employer credit for meals consumed by his employees, in effect deducted the value of the meals from the minimum wage he was obligated to pay. This was exactly what paragraph 14 of the Minimum Wage Order expressly prohibited, and the judgment was erroneous in this respect.

Since the employees in their brief present no substantial reason why the time taken to eat meals should not be deducted from their working time, or why the vacation pay should not be credited to the employer, we consider these grounds for reversal abandoned.

The final contention is that the court should have allowed plaintiffs a reasonable attorney’s fee. This is specifically required by KRS 337.360, which provides in part:

“If any woman or minor worker is paid by his employer less than the minimum fair wage to which he is entitled under a mandatory minimum fair-wage order he may recover in a civil action the full amount of the minimum wage less any amount actually paid to him by the employer together with costs and such reasonable attorney’s fees as are allowed by the court.” (Emphasis added)

This statute was upheld as constitutional in W. W. Mac Co. v. Teague, 297 Ky. 475, 180 S.W.2d 387, 389, upon the following ground:

“The general assembly, as have those of many other states, has seen fit to make a special class of women and minor employees and to enact legislation in their behalf. The provisions of the statute apply to all workers so classified. That the general assembly was justified in prescribing special working conditions and protective provisions for this class of workers seems beyond question. We believe, therefore, for the reasons given, that the attack upon the constitutionality of the provisions of the act allowing an attorney’s fee in the case is without foundation”.

In spite of this specific decision on the point, the employer contends the statute violates the public policy of this state. This is a rather unusual argument in view of the fact that the legislature, when it acts upon a particular subject matter, establishes such policy. It is true the courts may, in the absence of legislative decree, adopt and apply public policy principles. Such was done in Cloud v. Hug, Ky., 281 S.W.2d 911, where no statute was involved.

It is beyond the province of a court to vitiate an act of the legislature on the ground that the public policy therein promulgated is contrary to what the court considers to be in the public interest. It is the prerogative of the legislature to declare what acts constitute a violation of public policy and the consequences of such violation. Re Peterson’s Estate, 230 Minn. 478, 42 N.W.2d 59, 18 A.L.R.2d 910. The propriety, wisdom and expediency of statutory enactments are exclusively legislative matters. Hallahan v. Mittlebeeler, Ky., 373 S.W.2d 726, 97 A.L.R.2d 215. As so aptly stated in Collison v. State ex rel. Green, 9 W. W. Harr., Del., 460, 2 A.2d 97, 108, 119 A.L.R. 1422, 1437:

“ * * * it is the province of the legislature and not of the courts to pass upon matters of policy. The legislative hand is free except as the constitution restrains ; and courts are bound by a most solemn sense of responsibility to sustain the legislative will in the appropriate field of its exercise, even though in the opinion of the judges as individuals the legislature had acted in an unwise manner.”

We cannot declare KRS 337.360 void on the ground asserted.

We could so act only if it violated a constitutional provision, as we found in Burns v. Shepherd, Ky., 264 S.W.2d 685. The statute involved required the employer to pay one-half of the claimant’s attorney’s fee when an award was made by the Workmen’s Compensation Board. It was held to violate the due process clause of the federal Constitution and section 2 of the Kentucky Constitution (relating to the exercise of arbitrary power). The basis for the decision appears in these words (page 687 of 264 S. W.2d):

“Throughout all of the cases is the fundamental principle that the imposition of the fees is justified solely on the ground that the person responsible for their payment has brought about the situation through which the fees are incurred by the willful violation of some statutory or contractual obligation. In the statute under consideration, no distinction is made between the just and the unjust. It applies with equal force to the employer who, without reasonable basis for his position, is trying to escape his statutory responsibility, and the employer who is neither seeking to avoid or delay payment of a valid claim asserted by the employee.”

The broad statement in that opinion that the sole justification for the imposition of fees is the willful violation of a statutory obligation is inaccurate. The cases recognize other grounds. As shown in the language above quoted from the Teague case (297 Ky. 475, 180 S.W.2d 387), such a penalty (if properly it may be so characterized) can be justified as a protective measure for a certain class of workers. In Chicago & N. W. R. Co. v. Nye Schneider Fowler Co., 260 U.S. 35, 43 S.Ct. 55, 67 L.Ed. 115, the basis for upholding a statute allowing an attorney’s fee to those asserting property damage claims against railroad companies was that such a law stimulated the seasonable consideration and prompt payment of such claims.

No one seems to have questioned the authority of the legislature to require the husband to pay the wife’s costs which includes attorneys’ fees, under certain circumstances. KRS 453.120. Similarly, an attorney’s fee is allowed to the successful party under KRS 453.060. The obligation to pay these attorneys’ fees is certainly not a penalty for willful violation of a statutory or contractual obligation.

There are other social purposes served by allowing the successful claimant to recover an attorney’s fee in this type of •case. It is common knowledge that the workers in this class do not occupy a high position on the wage scale. Their claims, if any, would ordinarily involve relatively small sums. The cost of litigation might well exceed the amount of the claim. On the other hand, there could be no dispute .about the applicable minimum wage rate. The necessity for uniform compliance may well justify this stimulus, whether wise or unwise. We cannot say, as was said in the Burns case, that KRS 337.360 is so lacking in justification as to constitute an •arbitrary exercise of legislative power or to •deprive the employer of his property without due process of law.

Considering the nature of the claims and the class of workers involved, it is possible to distinguish between the Workmen’s Compensation Law and the statute involved as it relates to women and minors affected by the Minimum Wage Regulation, and on this ground we could declare the Burns case •inapplicable. Since, however, the public -policy exemplified under both laws is basic-felly the same, we now have some question concerning the soundness of the Burns decision. In any event, we are constrained to reaffirm the correctness of the Teague decision which held this statute constitutional.

The employer contends that since the fixing of the attorney’s fee is left to the discretion of the trial judge, he could properly award no fee because the amounts recovered by the employees were small. We cannot accept such an argument. If it had any semblance of validity in view of recoveries allowed in the appealed judgment, it cannot now prevail because our present decision will result in the recovery of substantially increased amounts. The appellants are entitled to an allowance of a reasonable attorney’s fee.

The judgment is reversed, with directions to enter a new judgment consistent with this opinion.

MONTGOMERY, J., dissenting.

STEWART, J., not sitting.

      . Another section of the Wage Order (paragraph 1 of LAB 40) supplements paragraph 14, above quoted, by requiring a written agreement for room and/or board, and further requires approval of the Department of Labor.


text:
    Roy MILNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.

      Edwin A. Monroe, Jr., W. Marvin Davis, Falmouth, for appellant.
    Robert Matthews Atty. Gen., Joseph H. Eckert Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

The Pendleton Circuit Court overruled without a hearing the motion of Roy Milner, under RCr 11.42, to vacate a 1965 judgment of conviction of rape under which Milner is serving a 10-year sentence. However, the court appointed counsel for Milner and through that counsel an appeal has been taken to this court.

The motion here in question was filed in April 1966. A previous motion filed in July 1965 was overruled in September 1965 and no appeal was taken from that ruling. The grounds asserted in the second motion either were stated in or could reasonably have been presented in the first motion. Accordingly, the court properly overruled the second motion. See RCr 11.42 and Bell v. Commonwealth, Ky., 396 S.W.2d 772.

Since the motion was such as properly could be overruled without a hearing there was no occasion for the court’s appointing counsel for the movant.

The judgment is affirmed.


text:
    Roy Lee WIGGINTON et al., Appellants, v. NELSON COUNTY BOARD OF EDUCATION et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.
    John C. Anggelis, Anggelis, Collis & Bunch, Lexington, for appellants.
    Ben B. Fowler, Dailey & Fowler, Frankfort, for appellees.
   HILL, Judge.

This is an appeal from a judgment upholding the plan of action of the Nelson County Board of Education to construct a new “central” high school 2.7 miles east of Bardstown on U.S. Highway 62 and denying other relief sought. This suit was originally filed by a group of citizens interested in obtaining repairs on the Bloomfield school buildings. After the date of filing of the original suit, it was determined by the Nelson County Board of Education, with the approval of the State Department of Education, that a new “central” high school would be constructed as above pointed out; whereupon, an amended pleading was filed asking that the board be enjoined from so doing.

The Legislature of this Commonwealth has wisely provided in Chapter 160 of the Kentucky Revised Statutes (KRS 160.290) that:

“Each board of education shall have general control and management of the public schools in its district and may establish such schools and provide for such courses and other services as it deems necessary for the promotion of education and the general health and welfare of pupils, consistent with the rules and regulations of the State Board of Education.”

This court has given great weight to the discretion of boards of education in this area. It was written in Perry County Board of Education v. Deaton, 311 Ky. 227, 223 S.W.2d 882, 883 (1949) that:

“County Boards of Education are given broad discretion under KRS 160.-160 and 160.290 in the selection of school sites and in the establishment of schools as they deem necessary for the promotion of education and the general welfare of the pupils. As stated in Phelps v. Witt, 304 Ky. 473, 201 S.W.2d 4, and Justice v. Clemons, 308 Ky. 820, 215 S.W.2d 992, when the Board has obtained the approval of the Superintendent of Public Instruction of its plans for a new building (KRS 162.060) courts will not interfere with the proposed plans unless there is positive proof of fraud, collusion or a clear abuse of discretion.”

Let us examine the facts of this case to determine whether there has been “fraud, collusion or a clear abuse of discretion.”

Prior, to the proposed new “central” high school plan questioned herein, Nelson County Board of Education maintained two high schools in Nelson County: a four-year high school at Bardstown, known as Old Kentucky Home High School, with an enrollment of 614 students; and a four-year high school at Bloomfield with an enrollment of 242 students.

The plan for the “central” high school was adopted in August 1965 and contemplates the use of the facilities 2.7 miles east of Bardstown for grades ten, eleven, and twelve and renovation of the present Bloomfield High School to accommodate a junior high school for seventh, eighth, and ninth grades for those students in the present Bloomfield High School district. The plan calls for the conversion of the present Old Kentucky Home High School into a junior high school to serve the remainder of the county district.

The circuit court in its findings of fact concluded that “an area vocational school, or trade school, is to be constructed on the site of the new high school, which will serve all of Nelson County and supplement the vocational training of the high school.”

Of basic geographic importance, favoring the proposed plan, is the fact that the new high school will be located about the center of the county less than three miles from Bardstown where all roads and highways, like the spokes of a wagon wheel, lead to the hub.

All plans, as well as budgets, of local school districts must have the approval of the State Department of Education. For years the department has recommended consolidation and a central high school for Nelson County. We recognize that the department has the facilities and information to impart scientific, modern plans and recommendations to the local boards of education for the betterment of their districts. It is hoped and believed that the plans and recommendations of the department are not based on partiality, sentiment, or politics and, therefore, deserve considerable respect. The recommendation of the department in the present case is considered strong and convincing evidence of the wisdom and necessity of the plan.

On the credit side of the plan, we may place the prospect of a broader high school curriculum. At the time this case was prepared in the circuit court, the two high schools in Nelson County were rated “standard.” In order to receive such rating, a minimum of thirty-three courses must be offered. Thirty-four courses are offered at Bloomfield; thirty-nine courses are offered at the larger Old Kentucky Home High School. The minimum requirement for a “comprehensive” rating is forty-three courses with a maximum desirable of fifty-nine courses. There was convincing evidence in this case that the proposed plan will enable the county board to achieve a “comprehensive” rating.

In addition to the above enumerated advantages, the proof indicates the removal of the seventh and eighth grades from the elementary schools at Foster Heights, Boston, Chaplin, Cox’s Creek, and Ñew Haven will improve and give more room to the elementary program. We have listed here some of the sound reasons in support of the plan in question, and there are others.

Appellant relied heavily on the claim that some of the board members threatened to consolidate, or build a central high school, upon being sued by appellants for repairs at Bloomfield. This is denied by the board members. However, if this were true, such threats or statements of fact may or may not have been justified. In the face of the prospect of a central school, it is entirely possible that the board of education thought it not feasible at that time to make the demanded repairs at Bloomfield. In any event, we are not so much concerned with the motive and manner of the adoption of the* plan as in the test of whether it is arbitrary or unreasonable.

It is concluded that the Board of Education of Nelson County did not act unreasonably or arbitrarily in planning a central high school. To the contrary, we think the plan is feasible, practical, and beneficial to the entire school system of the county.

The judgment is affirmed.


text:
    Paul MULBERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.

      Charles E. Carter, Owenton, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for appel-lee.
   STEWART, Judge.

Paul Mulberry, tried by a jury, was fined $325 for removing a fence from a boundary line in violation of KRS 433.770(2). He represented himself until this appeal was taken. No transcript of evidence is filed with us and no motion for a new trial was made in the trial court.

His first contention is that a fence does not constitute a monument within the meaning of KRS 433.770(2). This statutory subsection provides, in part: “Any person who willfully and knowingly, but without a felonious intent, breaks down, damages or removes any monument erected to designate * * * the boundaries of any tract or lot of land, or any tree, post, stone or mark planted for that purpose, shall be fined not less than ten dollars nor more than two thousand dollars.” (Emphasis added.)

The question raised has never been decided in this jurisdiction. In the case of Rodgers v. Roseville Gold Dredging Co., 135 Cal.App.2d 6, 286 P.2d 536, which was an action to quiet title, the California District Court of Appeals held that a fence can be considered to be a monument. The court stated, quoting from Perich v. Maurer, 29 Cal.App. 293, 155 P. 471: “‘The fence itself is a monument, visible and obtrusive, * * ”

A monument, when used in describing land, may be defined as any physical object on the ground which helps to establish the location of the line called for. It may be either natural or artificial. Delphey v. Savage, 227 Md. 373, 177 A.2d 249.

Mulberry’s next contention is the trial court did not instruct the jury that the verdict must be unanimous. He did not obj ect to the instructions at the time they were submitted. Acting as counsel for himself, he did not file a motion for a new trial. In fact, he calls attention to this claimed error for the first time after bringing this case up for appellate review.

In Rice v. Commonwealth, Ky., 387 S.W.2d 4, 6, where a similar error was alleged, and no steps were taken to call the matter to the attention of the trial court, we pointed out that as Rice, the appellant, failed to pursue a course of action which would enable the trial court to rule on his complaint as to the instructions, he cannot now ask us to consider this point for the first time. See also Hartsock v. Commonwealth, Ky., 382 S.W.2d 861, 864.

Wherefore, the judgment is affirmed.


author: BELCHER, Commissioner.

text:
    James GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 39902.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1966.
    No attorney on appeal for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Leon B. Douglas, State’s Atty.,. Austin, for the State.
   OPINION

BELCHER, Commissioner.

The conviction is for robbery by assault with a prior conviction for felony theft alleged for enhancement; the punishment, life.

Notice of appeal was given prior to January 1, 1966.

Nellie Bell testified that about 12:30 a. m., January 25, 1964, she was walking home from a bus stop after leaving her employment at a restaurant; that she began walking real fast when she noticed a man running behind her and a car being driven along slowly but the man overtook her, struck her in the back of the head, knocked her down, grabbed her purse and jumped in the car as it drove away; that her purse contained $89 in money and a check in the amount of $39.77 which he took without her consent after putting her in fear of her life and bodily injury; that she observed the man’s size, build, and height, and that he was a colored man, and that the car was dark in color; that she selected the appellant from a six-man lineup at the police station as the man who assaulted her.

The testimony reveals that the check taken from the victim’s purse on January 25th was presented for payment to the cashier at Weingarten’s, who made a photograph of the transaction at the time, including in the photograph the check and the person presenting it for payment; and when the cashier was asked, while testifying, if she had seen the man in the photograph any other times than at the store replied, “Only today that I remember.”

Officer Mackey testified that after warning the appellant in compliance with the statutory requirements including his right to counsel, he made and signed a written statement pertaining to the robbery.

In the absence of the jury, the trial court held an independent hearing on the voluntary nature of the written statement. Upon the conclusion of the hearing, the trial court found that said statement was freely and voluntarily made; and that he was also informed of his right to counsel from the time of his arrest until the statement was completed.

The written statement of the appellant was introduced in evidence and it reads in part as follows:

“My name is Jim Green also known as James Green. * * * I attended George Washington Carver Night School in Edna, Texas, and went to the 11th grade. I can read and write the English language.
“On January 24, 1964, I was on Dowling at McGowen, and it was around midnight. * * * I saw a colored woman walking ahead on the sidewalk. * * * At this time, the lady started walking across the street, and I ran up behind her and hit this lady and knocked her down. I then reached down and took the lady’s purse off her arm. It was a black cloth purse. I ran north on Chenevert about four or five blocks and stopped and looked in this lady’s purse. I took out the billfold and I think it was about $75 in the billfold. I also found a check down in the lady’s purse that I kept. I then dropped the lady’s purse and billfold in a ditch on Hamilton and Anite. I had run out of money, so, I decided to cash the check I had kept. This check had the name of Flanagan on it. I don’t remember the first name, but the check was for $39 and some cents. I went to the Weingarten’s Store on Prairie at Travis and I went in and I signed the name on the back of the check with my left hand just as it was written on the front. * * * ”

Record proof was made of the prior conviction alleged for enhancement Also, the appellant admitted said conviction while testifying in his own behalf.

Testifying in his own behalf, the appellant denied committing the robbery saying he was at home at that time. He testified that he signed the written statement because of the harsh words used by the officers toward him and because he was afraid of what would happen to him; that he was told that his punishment would be light if he made a statement; that he was afraid of being charged with bootlegging because the officers found some liquor in his room. Testifying further, the appellant denied cashing the check at Weingarten’s, and said that the photograph made at the cashier’s window was not of him; that he was never advised of his right to counsel or warned before making the written statement.

In the state’s rebuttal the officers testified that they made no threats toward or abused the appellant; and' that he was warned before making the statement and they made no promises of a lighter punish-, ment if he made a written statement.

It is contended that the trial court erred in admitting the testimony of Deputy Sheriff Fullerton that he took the fingerprints of the appellant in a room adjoining the courtroom on the day of the trial in order to compare them with those among the record evidence of the prior conviction.

The appellant, testifying in his own behalf, admitted the prior conviction alleged for enhancement. This admission was all that the state sought to prove by a comparison of the fingerprints, that is, the prior conviction alleged. The contention does not present error.

The court charged the jury on alibi and the issue as to the voluntary nature of appellant’s written statement.

There are no formal bills of exception.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Judge.

text:
    Ex parte Tommy N. GREER.
    No. 39981.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1966.
    Will Gray, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

This is a habeas corpus proceeding attacking the validity of the life sentence under Art. 63 P.C. affirmed by this Court in Greer v. State, 165 Tex.Cr.R. 300, 306 S.W.2d 371.

The application, “denied” by the endorsement of two of the Judges of this Court, presented the contention that his conviction in Bastrop County on July 18, 1952, used to enhance his punishment under Art. 63 P.C., was void because:

(A) he was not represented by counsel,
(B) was not afforded an opportunity to secure court appointed counsel,
(C) was indigent when he pleaded guilty, and
(D) he did not waive his right to the assistance of counsel.

The Supreme Court of the United States, on May 23, 1966, granted certiorari; vacated the order denying the application, with costs, and remanded the cause to this Court for further proceedings not inconsistent with the opinion of the Supreme Court, Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526.

On June 23, 1966, following receipt of the mandate of the Supreme Court, petitioner’s alternative prayer was granted and the Judge of the 21st Judicial District was instructed to have a hearing on the question of whether or not petitioner was represented by counsel, was afforded an opportunity to secure court appointed counsel, and was indigent at the time he plead guilty to the indictment in the Bastrop County cause.

On July 5, 1966, upon allegation that our order of June 23, 1966 was contrary to and inconsistent with the opinion of the Supreme Court, and that no further proceedings were required or authorized, a Petition for Writ of Mandamus and/or Writ of Prohibition against the Judges of the Court of Criminal Appeals of Texas was forwarded to the Supreme Court and on October 10, 1966, motion for leave to file such petition was denied.

Though no hearing has been had pursuant to our order of June 23,1966, it is now made to appear that the conviction in Bastrop County was upon a plea of guilty before the court and that the petitioner, defendant in said cause, was without counsel and was permitted to waive a jury without counsel being appointed as required by Art. 10a Vernon’s Ann.C.C.P., in effect at the time.

Under the holding of the Supreme Court in Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526, the Bastrop County conviction was not available to enhance the punishment for a subsequent burglary. See Ex parte Hammonds, Tex.Cr.App., 407 S.W.2d 779, decided November 2, 1966.

Petitioner has served in excess of 12 years.

The application for writ of. habeas corpus is granted and it is ordered that petitioner be released from further confinement under the life sentence affirmed by this Court in Greer v. State, 165 Tex.Cr.R. 300, 306 S.W.2d 371.