author: CULLEN, Commissioner.

text:
    Joseph A. FEISTRITZER, Appellant, v. Gerald Ray LISTER et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.

      P. Joseph Clarke, Jr., Danville, for appellant.
    James G. Sheehan, Jr., Danville, for ap-pellees.
   CULLEN, Commissioner.

Appellee Gerald Ray Lister, driving his automobile in a southerly direction on a two-lane highway a short distance south of the city limits of Danville, undertook to make a left turn (to the east) into a side road. Before his car had cleared the northbound lane of the highway it was struck by a motorcycle operated by appellant Joseph A. Feistritzer, which came from the south. Feistritzer sued Lister and his parents, and the latter counterclaimed. The jury found both drivers negligent and did not award damages to anyone. Feistritzer alone has appealed from the judgment which dismissed all claims.

The major contention of the appellant is that the trial court erred in refusing to give a last clear chance instruction as requested by appellant.

The argument is that the jury reasonably could have believed that after the situation of peril developed (Lister being in the process of turning across the northbound lane; Feistritzer approaching at high speed in that lane; and the southbound lane being occupied, just north of Lister’s car, by a southbound automobile) Lister had a clear chance to avoid the accident by “gunning” his car out of the path of the motorcycle. We find no merit in the argument becausé the evidence shows that at the most two seconds elapsed from the time Lister commenced his turn to the time of impact. Making some allowance for reaction time, this means that Lister had only a little more than one second in which to undertake an escape by a radical increase in the speed of his car. Not only was his time for action extremely short, but the chance of the action’s being successful was conjectural. In our opinion reasonable men could not say that Lister had a clear chance. Cf. Dixie Ohio Express Co. v. Eagle Express Co., Ky., 346 S.W.2d 30; Severance v. Sohan, Ky., 347 S.W.2d 498.

The appellant contends that the evidence would have warranted a finding that Lister “froze” and stopped his car across the north-bound lane, and therefore the jury could have believed that he had a clear chance to avoid the accident simply by continuing to move instead of stopping. However, as we read the evidence it would not have warranted a finding that Lister so stopped his car. All of the evidence is that he kept moving.

The appellant suggests that the trial court erred in not instructing the jury that Lister was negligent as a matter of law. Assuming for the purposes of argument that this was error it was not prejudicial because the jury found Lister negligent.

The judgment is affirmed.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    Garland COOK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.

      John W. Coomes, New Castle, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

This is an appeal from a conviction for throwing a missile, a block of wood, “calculated to produce death or great bodily harm,” at a speeding automobile in violation of KRS 435.190(2).

On September 19, 1964, about 3:00 a. m., William H. Brummett, a policeman of Shelbyville, Kentucky, operating a police cruiser with his lights off, saw a car stopped at 7th and Clay Streets in Shelby-ville. Brummett flashed his spotlight on the car, a 1955 Chevrolet, which took off at high speed. Brummett, following in hot pursuit, radioed to another police cruiser operated by William S. McClain to set up a road block. McClain did this, but the Chevrolet went around the road block as McClain shot up in the air twice. Brummett followed the car at a very high speed to Big Bullskin Bridge about three miles west of Shelbyville, Kentucky, toward Louisville on U. S. Highway 60, where his police cruiser struck a mail box about 150 feet west of the bridge, throwing him from the car and injuring him.

The defendant, Garland Cook, was riding in the 1955 Chevrolet which was owned and operated by his cousin, Edwin McGaughey. They had been to a party and were in the vicinity of the McGaughey home when the policeman, William Brummett, flashed his spotlight on the McGaughey car. Mc-Gaughey speeded away just to see if he could outrun the police car. McGaughey admits running the road block and seeing the police cruiser chasing him, but denies any knowledge of a wreck and contends that the police cruiser was not even in sight when he went over Big Bullskin Bridge. A few hours later Cook and McGaughey were picked up at an allnight' restaurant by a State Trooper and brought back to Shelby-ville. McGaughey paid a fine for speeding.

In the hospital Brummett said that he recognized Garland Cook leaning from the McGaughey car and something had been thrown by Cook causing the cruiser to wreck. Cook did not testify at the trial, but McGaughey denied that either he or Cook shot at the police cruiser or threw anything at it.

About three hours or more after the wreck, Jake Brummett, Chief of Police, found a chunk of wood three feet off the paved portion of U. S. Highway 60 on the south side of the road and about fifteen feet from the west end of the bridge. Arvie Wriston, an unrelated and disinterested witness, testified that he, while operating a tractor and wagon across the bridge in the middle of September (tobacco cutting time) about 10:00 o’clock one morning, saw the block of wood which was introduced by the Commonwealth. Jake Brummett contends that he found the block of wood about 6:00 a. m., three hours after the wreck.

Garland Cook was indicted under KRS 435.190(2) for throwing a stone or other missile or shooting at or into a motor vehicle operated by W. H. Brummett, calculated to produce death or injury, whereby W. H. Brummett was injured. Cook was tried and, as a result of a jury verdict, was sentenced to one year in the Kentucky State Reformatory.

The appellant contends that the block of wood, an eight inch piece of a 4 x 4 which was sawed slantingly at one end and thus made suitable for use as a chock block, was improperly admitted in evidence. Officer Brummett, of course, could not identify the block as the object thrown from the car. All he could say was that Cook threw something from the car. When Chief Brummett found the block at dawn it was, on the side of the road within a few feet of the first skid marks made by the police cruiser before it wrecked. A slight blue stain on the block was the color of the cruiser’s wheels. We think that the trial court acted properly in admitting the block into evidence, for it was linked sufficiently by time, place and stain to qualify it as circumstantial evidence that it was what was thrown from the car. Furthermore, since the block was suitable for chocking a car wheel, it would not be unreasonable to at least suspect that it had been in the speeding Chevrolet. The appellant complains about the block being exposed to jury view during the trial before it was introduced and admitted which allegedly gave it undue emphasis and prejudiced the jury. We do not agree that that was prejudicial in this instance, for there was nothing gruesome or unsightly about the block calculated to unduly impress or influence the jury. It was just a block of wood of no particular significance until admitted into evidence after which it became the symbol of a foolish, brash, criminal act.

The appellant also contends that he was entitled to an instruction under subsection (1) of KRS 435.190, the subsection of the statute which deals with recklessly throwing a stone or other missile at or into a passenger vehicle traveling on the public highway as distinguished from throwing a missile “calculated to produce death or great bodily harm” at or into such a vehicle which is the gravamen of subsection (2) of the statute, the subsection under which Cook had been indicted and for violation of which the penalty is greater. In the proper factual situation we would agree with this contention, but in the light of the circumstances presented in this case where the speed of the cars approximated 100 miles an hour, anything which could be characterized as a stone or a missile which was recklessly thrown at or into the pursuing car could readily be “calculated to produce death or great bodily harm.” Officer Brummett said he saw Cook throw something in those circumstances, and immediately the accident happened. We find no mitigating circumstances which would justify an instruction under subsection (1).

There is the further contention that Officer Brummett’s testimony discloses that the object thrown from the Chevrolet was not thrown at or into the police cruiser but into the road in front of it. Again, the speed of the vehicles and their proximity to each other makes “at” or into the road “in front” of the pursuing car amount to the same thing for practical purposes. Either a hit or a miss is encompassed into the word “at” in such circumstances. It was proper to give no instruction under KRS 435.170(4) making it an offense to throw a stone or missile into a “motor vehicle occupied by any person,” for the more specific offense charged here is for such a throwing when the vehicle is “stationary or traveling upon a public highway in this state.” We think the instructions gave the whole law of the case. The failure of the indictment to include the word “recklessly” did not mislead the appellant. Such defects should be reached before trial under RCr 8.18.

The judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    James R. WILSON, Petitioner, v. JEFFERSON CIRCUIT COURT and Honorable Judge J. Miles Pound, Respondent.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    James R. Wilson, pro se.
    No appearance for respondent.
   MOREMEN, Chief Justice.

Movant Wilson filed a motion under RCr 11.42 in the Jefferson Circuit Court which was overruled without a hearing on the ground that a sufficient cause for granting it was not shown on the face of the petition. Wilson thereafter filed a motion to proceed in forma pauperis. This motion was overruled and he filed a petition in this Court to require Honorable J. Miles Pound, Judge of Jefferson Circuit Court, to furnish him a copy of the record for purposes of appeal. No response to the motion has been filed in this Court.

We have held that a petitioner is entitled to a free transcript of his RCr 11.42 proceeding in order to perfect the appeal if he has no money or property with which to pay for it himself. Under the authority of Davenport v. Winn, Ky., 385 S.W.2d 185, the petition is granted and an order of mandamus shall issue requiring the Honorable J. Miles Pound, Judge of Jefferson Circuit Court, to furnish a copy of the record to movant Wilson.


author: PER CURIAM.

text:
    In re Ollie James COHEN.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Joseph J. Leary, Frankfort, Samuel M. Rosenstein, Kenneth S. Handmaker, Louisville, for applicant.
    George B. Ryan, Louisville, for Louisville Bar Association and Kentucky State Bar Association.
   PER CURIAM.

On March 4, 1955, Ollie James Cohen was disbarred from the practice of law in this Commonwealth for convictions of uttering a forged will and giving false testimony during a trial. He was also accused of contributing to the delinquency of two minor girls. See In re Cohen, Ky., 276 S.W.2d 34 (1955), where these offenses are set out in more detail.

On January 7, 1964, Mr. Cohen filed his application for reinstatement with this Court as provided by RCA 3.560. Thereupon, the Clerk of this Court referred the application to the Board of Governors of the Kentucky State Bar Association. After conducting a hearing the Board filed its written report recommending that Cohen’s application be denied. The question before us is whether or not we should sustain the recommendation of the Board.

Cohen was incarcerated for his convictions and later worked as a clerk in his father’s pawn shop. In May of 1963 he began work in Louisville as a car salesman, and in January 1964 he moved to Glasgow where he continued to work as a car salesman.

Cohen produced a compilation of affidavits and testimony of witnesses which support his contention that he has “lived a consistent life of probity and integrity.” See In re Stump, 272 Ky. 593, 114 S.W.2d 1094 (1938). However, Cohen had made no attempt to satisfy a civil fraud judgment which had been rendered against him in 1954. The Board found that this failure to make restitution to the financially wronged parties was the most glaring example of Cohen’s failure of rehabilitation. Cohen has attempted to justify this lack of restitution on the ground that he was financially unable to do so, but it should be noted that Cohen failed to contact the wronged persons or to make any provision for future payment.

The Bar Association has pointed out several instances in the behavior of Cohen which are inconsistent with the “good character necessary to guarantee uprightness and honor in his professional dealings and the faithful discharge of his duties as a lawyer.” We will not examine each of these incidents, since the applicant carries the burden of overcoming, by persuasive evidence, the prior derogatory judgments on his qualifications. Here, the grossly unprofessional conduct and violation of the legal ethics places a proportionately heavy burden on the applicant to prove himself worthy to be “reintrusted with the confidences and privileges of an attorney at law.” In re Stump, supra. Although Cohen produced an excellent list of character affidavits and testimony, very little of this evidence produced any substantial facts which tended to show any significant rehabilitation.

After reviewing the nature and degree of misconduct for which Cohen was disbarred, and his subsequent conduct in regard to those past offenses, we are of the opinion that Cohen has failed to -meet his very heavy burden of proof with sufficient persuasive and positive proof.

The recommendation of the Board is affirmed.


text:
    James Edward ROARK, Petitioner, v. Hon. B. Robert STIVERS, Judge, Laurel Circuit Court, London, Respondent.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    James Edward Roark pro se.
    B. Robert Stivers, London, pro se.
   MOREMEN, Chief Justice.

This is an original action in this Court whereby Roark seeks to obtain an order requiring the Judge of the Laurel. Circuit Court to furnish him with a copy of the record made in a proceeding filed under RCr 11.42. The motion in the latter proceeding was overruled without a hearing. Appellant filed notice of appeal and motion to proceed in forma pauperis. That motion was overruled. A response has been filed which indicates that the Court believes that movant Roark is seeking to obtain a copy of the record in the case where he was originally convicted and sentenced to prison. Sufficient reasons are given for not furnishing that record. However, the proceeding in this Court is directed toward obtaining a copy of the proceedings under RCr 11.42.

Under Davenport v. Winn, Ky., 385 S.W. 2d 185, Roark is entitled to a copy of that record. The petition is therefore granted and an order of mandamus shall issue requiring the Judge of the Laurel Circuit Court to furnish a copy of the record in the RCr 11.42 proceeding to movant, James Edward Roark.


author: WILLIAMS, Judge.

text:
    CLAY COAL CORPORATION and the Travelers Insurance Company, Appellants, v. Anderson ABNER and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.

      Robert L. Milby, Hamm, Taylor & Mil-by, London, for appellants.
    Neville Smith, Manchester, for appellees.
   WILLIAMS, Judge.

Appellee Anderson Abner, 23 years of age, sustained an injury to his back on October 2, 1962, as a result of pushing a two-ton coal car in appellant Clay Coal Corporation’s mine. The Workmen’s Compensation Board made an “open-end” maximum award to appellee based on a finding that he was totally disabled. This appeal is from a judgment of the Clay Circuit Court affirming the award.

The first alleged error is that the Board awarded compensation in a greater amount than that shown by the evidence. The only testimony in the record as to appellee’s wages is as follows:

“Q 140. What was your average weekly wages there when you worked full time?
A $50.00 to $60.00 when I worked full time.
“Q 141. Could you give us an average figure?
A I would say around $50.00 a week, I averaged all the time.
“Q 142. Was that when you worked full time?
A No, not when I worked full time.
“Q 143. What I want to know is, if you worked full time every day what would you average every week?
A $60.00.”

That testimony is sufficient to sustain an award based on the average weekly wage “at full time” of $60.00, pursuant to KRS 342.140. See Green Valley Coal Co. v. Carpenter, Ky., 397 S.W.2d 134.

The second issue raised is whether there was sufficient competent testimony to justify the finding of the Board that the disability was a direct result of the injury sustained and not partially the result of any pre-existing diseased condition.

Appellee was referred to Dr. W. K. Mas-sie, an orthopedic surgeon at Lexington, who first saw appellee on November 14, 1962, and on the ISth of November a disco-gram was done. Dr. Massie testified that the discogram showed degeneration of the disc at L-5, S-l. After three days of hospitalization and several other visits to Dr. Massie, appellee was given another disco-graphic examination on February 18, 1963. This examination showed little degeneration, if any, and “was interpreted as a normal outline.” At one point in his testimony Dr. Leonard A. Goddy, the Board-appointed doctor, stated: “If degeneration of the disc space were found shortly after the accident, then I would say that there was some degree of degeneration present prior to the accident.”

Appellee’s contention that his disability resulted solely from the injury sustained is based upon testimony of Dr. Marion G. Brown, who stated: “It’s medically reasonable that this injury is the cause of his disability, and this is my opinion.” Also, Dr. Goddy, in response to the question, “Have you an opinion as to whether or not all of the condition of disability which you find is a result of the traumatic incident of October the 2nd, 1962?” stated: “I would say that the physical findings that we found at the time of the examination would certainly be consistent with an injury such as the man described he sustained in October of 1962.” The record also includes Dr. Joseph Keith’s testimony to the effect that no degeneration was indicated, either pre-existing or present.

Since Dr. Massie stated that after making the second discogram he found no degeneration of the lumbo-sacral disc, and since there was positive testimony that the disability resulted from the injury rather than any pre-existing condition, we find that there was substantial evidence to support a finding that the disability resulted solely from the injury. Consequently there was no requirement that the Board make an apportionment.

Appellant also contends that the evidence is not sufficient to sustain an award of total disability. However, there was testimony that appellee was totally disabled to resume the occupation which he held at the time of the injury. Dr. Marion G. Brown testified: “I would not recommend that he return to heavy work in the mines yet, but probably would want to try him in six or eight weeks after a built-up (sic) program.” Dr. Goddy also testified: “At the present time I feel that he could probably not resume that occupation he had at the time of the injury.” Certainly there was substantial evidence to sustain an award, and the Board chose to believe it over rebutting' testimony.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Elmer TUFTS, Appellant, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Corporation, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.

      Warren M. Briggs, Cleveland, Ohio, Joseph E. Fineman, Louisville, for appellant.
    Porter M. Gray, Ashland, Gerald Kir-ven, Louis Seelbach, Louisville, Gray, Woods & Cooper, Ashland, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, of counsel, for appellee.
   CLAY, Commissioner.

Plaintiff appellant brought suit in Jefferson County against the appellee carrier under the Federal Employers’ Liability Act for damages resulting from personal injuries. On motion, the trial court dismissed the action for improper venue.

Appellant is a resident of Greenup County and that is the place where he was injured in appellee’s yards. Appellee is a foreign corporation, and in compliance with KRS 271.385 it had designated Ash-land as the location of its resident office and named a process agent there.

Under KRS 452.455 appellant could have sued appellee in Greenup County or Boyd County. For some reason he elected to sue in Jefferson County. Under KRS 452.455 this action could be brought there only if Jefferson County is “the county in which the defendant * * * resides”.

The evidence shows that appellee does a substantial amount of business in and out of Louisville; it owns one-half mile of track there; and it has two district managers there, one in the Freight Traffic Department and the other in the Passenger Sales Department. It is appellant’s contention that because of the nature of the business done by appellee in Jefferson County, it should be judicially determined that there is its place of residence.

The record shows that the chief office of appellee is in Boyd County. This was specifically held in Chesapeake & O. Railway Co. v. Glaspy’s Adm’r, 251 Ky. 243, 64 S.W.2d 564. In our opinion that is where appellee resides.

Prior to 1953, there could have been no question about this because section 732, subsection 32, of the Civil Code provided:

“The words ‘residence,’ ‘reside,’ mean, with reference to a corporation, its chief office or place of business.”

In 1953, when the Rules of Civil Procedure were adopted, this section of the Code was repealed. It consisted of “Rules That Prevail in Construing Code”, and apparently it was repealed because made obsolete by the new rules. Appellant contends this changed the law. We do not think so. It is still sound law that if a foreign corporation has a chief office or place of business in Kentucky, that should be deemed its residence. See James v. Nashville, C. & St. L. Ry., 310 Ky. 616, 221 S.W.2d 449.

It is appellant’s contention that a foreign corporation can have more than one residence in the state. We can find no justification for such a finding in this case. KRS 452.455 clearly contemplates that a carrier have but one residence for the purpose of suit. Since appellee has one in Boyd County, we see no reason to interpolate the doing of business in Jefferson County into a residence there.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Sue Hoke MURRELL et al., Appellants, v. CITY OF HURSTBOURNE ACRES, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Woolsey M. Caye, Louisville, for appellants.
    John Firth Stewart, Louisville, for ap-pellee.
   DAVIS, Commissioner.

The appellants own land adjacent to the sixth-class City of Hurstbourne Acres in Jefferson County. The city, appellee here, enacted an ordinance proposing to annex the land of appellants into the city, pursuant to KRS 81.240. The ordinance was identified as Ordinance No. 12, Series 1964. Appellants timely filed a remonstrance suit as provided in KRS 81.110, 81.240. By an amended complaint, appellants named the Jefferson Fiscal Court as a party to the suit, and alleged that the ordinance proposing annexation was void for the city’s failure to furnish a copy of the proposed ordinance to the Jefferson Fiscal Court as required by KRS 81.290(1).

The appellee city filed answer to the amended complaint, admitting that it had not furnished a copy of Ordinance No. 12, Series 1964, to the fiscal court until after the ordinance had been adopted. Thereupon appellants moved for summary judgment, and with the motion tendered a paper entitled “Order,” in which it was recited, in part: “* * * the plaintiffs are entitled to judgment as a matter of law, judgment is hereby rendered in favor of plaintiffs declaring the ordinance referred to in the complaint as being null and void and of no force and legal effect, and plaintiffs are given judgment against the defendant for their costs herein expended.” At the foot of this paper was a prepared line for the expected signature of the trial judge, but the document was never signed by the trial judge.

On February 5, 1965, the trial judge rendered a written opinion in which he reviewed the factual background, and which was concluded in these words:

“While the Court is always reluctant to decide a case upon a technicality, it world appear that the merits would not be reached because of the failure of the Defendant to comply with the plain terms of KRS 81.290. Plaintiffs’ Motion for Summary Judgment is hereby sustained and Defendant’s Motion for Judgment on the pleadings is overruled.”

There was no order or judgment entered to implement the trial judge’s opinion. While the record was in that posture, the appellee city’s board of trustees passed an ordinance repealing its Ordinance No. 12, 1964 Series, on February 16, 1964. Publication of the repealing ordinance was accomplished on February 19, 1964, and on that same date the appellee city moved the trial court to dismiss the remonstrance suit because it had been rendered moot by reason of the repeal of Ordinance No. 12, 1964 Series.

On March 5, 1965, the trial judge rendered another written opinion, in which he expressed the view that the city’s motion to dismiss the case as moot was well taken; on that same date an appropriate order was entered dismissing the remonstrance action as a moot case. It is to set aside that order that this appeal is directed.

The appellants assert that the opinion of the trial court rendered February 5, 1965, constituted a judgment declaring Ordinance No. 12, Series 1964, null and void. From this premise it is contended by appellants that the trial court had jurisdiction to sign the summary judgment nunc pro tunc, and that is was reversible error for the court to dismiss the action.

Assuming, without so deciding, that the signed opinion was a judgment, it was never entered in the circuit court. CR 54.01 defines a judgment as “ * * * a written order of a court adjudicating a claim or claims in an action or proceeding.” CR 58 provides that the circuit court clerk “ * * * forthwith upon receipt of the signed judgment or order shall note it in the civil docket as provided by Rule 79.01. The notation shall constitute the entry of the judgment or order and such judgment or order shall become effective as of the date of such notation. The additional notation required by Rule 77.04(2) shall govern the running of time for appeal.” See Clay, CR 58, Author’s Comment 3, in which it is said, in part:

“Under this Rule, in circuit courts the original order or judgment must be signed by the judge. It may not be entered by the circuit clerk until it is signed. The signing, however, is not the act that makes the judgment or order effective. The notation by the clerk in the ‘Civil Docket’, kept as provided in Rule 79.01, is the final step which constitutes the entry of the order or judgment. Thus every order or judgment, to become effective, must be: (1) signed by the judge, and (2) noted in the Civil Docket by the clerk. The notation constitutes the entry, and the order or judgment becomes effective as of the date of such notation (Author’s emphasis)

It is clear, we think, that no judgment had been entered when appellee made its motion to dismiss the case as moot. Since no judgment had been entered, the circuit court retained jurisdiction to act in the case. Perhaps appellants may have been entitled to have judgment entered nunc pro tunc, (a question we do not reach) but there is no showing in the record before us that a motion for judgment nunc pro tunc was made. We think it is patent that the trial judge’s retention of power to act in the case included his power to change his mind — or to formulate a different opinion about its disposition. In the circumstances of record before us, there is no showing of reversible error in the court’s dismissing of the remonstrance action.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Ras WARNER, Jr., et al., Appellants, v. Alisa Dawn WARD, Infant under 14 years of age, et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.

      John Frith Stewart, Crestwood, for appellants.
    M. L. Perkinson, Bruce Hamilton, La-Grange, for appellees.
   PALMORE, Judge.

This is an adoption proceeding under KRS 199.470 et seq., in which the appellants, Ras Warner and wife, Lavern Warner, sought to adopt Alisa Dawn Ward, infant child of Mrs. Warner’s daughter, ap-pellee Shirley Ann Ward (now Parrish). They appeal from a judgment denying the adoption and directing them to restore custody of the child to Shirley Ann.

Alisa was born April 16, 1963, at which time her mother, Shirley Ann, was 16 years of age and unmarried. On May 14, 1963, less than one month later, Shirley Ann signed and acknowledged a consent to Alisa’s adoption by Mr. and Mrs. Warner. The Warners duly filed their petition for adoption on August 15, 1963. The ensuing investigation by the Department of Child Welfare, KRS 199.510, proved adverse to the petition. Meanwhile, on March 7, 1964, Shirley Ann married Roy Parrish, who admits he is Alisa’s father, and eventually she filed an answer and counterclaim alleging among other things (1) that her consent to the adoption had been procured at a time when she was a minor and had no advice from anyone but her mother and her mother’s attorney, was without means to provide for the baby, and was under extreme pressure, (2) that she had now married the child’s father, and (3) that she and her husband desired to and could provide adequate support and care for the child. Following an appropriate hearing the trial court entered findings of fact, conclusions of law, and the judgment in Shirley Ann’s favor.

The briefs are devoted very largely to the evidence, and reasonable arguments are made both ways. All of the contestants have suffered misfortunes of one kind or another, but it would serve no useful purpose to assess the debits and credits and attempt to strike a balance here. It is enough to say that the evidence provides ample support for the trial court’s findings and judgment.

It is not seriously contended that Shirley Ann eould not legally withdraw her consent. If “sufficient reason is shown there may be a revocation before final judgment.” Skaggs v. Gannon, 293 Ky. 795, 170 S.W.2d 12, 16 (1943). That the act of relinquishment or consent was performed under circumstances of temporary distress or discouragement is a sufficient reason. Cf. Ferguson v. Klein, 273 Ky. 473, 116 S.W.2d 950 (1938). In the instant case it seems to us, under the traditional principle that an infant may avoid his commitments, that Shirley Ann’s age when she executed the consent was enough in itself to establish a right of disaffirmance. Moreover, even if she had not changed her mind it was not incumbent on the court to grant the adoption. Parental consent is but one of several statutory prerequisites of an adoption, principal among which is “the best interest of the child.” Cf. KRS 199.520(1).

Appellants contend that consent is unnecessary when parental rights are terminated. KRS 199.500(4), 199.600. They did ask in their petition that Shirley Ann’s parental rights be terminated, but they neither pleaded nor proved the matters set forth in KRS 199.600 as essential to such termination.

The point is made that Shirley Ann’s husband, Parrish, did not join and is not a party to the proceeding. This is no infirmity to Shirley Ann’s case. On the contrary, it would seem fatal to the War-ners’ position, because when the natural father of an illegitimate child marries the mother and acknowledges the child as his, the child is ipso facto legitimized. Cf. KRS 391.090(3); Jackson’s Adm’rs. v. Moore, 38 Ky. (8 Dana) 170 (1839); Dudley’s Admr. v. Fidelity & Deposit Co., Ky., 240 S.W.2d 76, 79 (1951). Parrish having married Shirley Ann and admitted in this proceeding that he was Alisa’s father, he became one of the “parents of a legitimate child” within the meaning of KRS 199.500(1), and the adoption could not have been granted without his consent or a termination of his parental rights.

Appellants complain also that the report of the Department of Child Welfare should have been excluded from consideration, first because it consisted substantially of hearsay and secondly because, it is claimed, they did not have access to it prior to the hearing.

We do not know how the first of these objections could be eliminated without invading the province of the legislature, which by KRS 199.510 has provided that the report be made and submitted to the court. “It is well settled that the legislature of a state has the power to prescribe new, and alter existing, rules of evidence or to prescribe methods of proof.” 20 Am.Jur. 38 (Evidence, § 8). The reliability of the report is a matter within the competence of a qualified trial judge to weigh and determine.

On the second point, the record shows that the report was filed on February 24, 1965. The hearing was held on March 3, 1965, at which time the trial court stated that the report was in the record. Hence it is clear that it was available for inspection by the parties and their attorneys. Cf. KRS 199.570(1). It is but two pages long, and could have been read and digested without delay. As a matter of fact, the departmental representative who prepared the report appeared as a witness and was cross-examined by counsel for the appellants. She gave the names of the persons she had interviewed, and they were subpoenaed and used as rebuttal witnesses. We are unable to perceive any prejudice in the circumstances.

The judgment is affirmed.


text:
    Otto THACKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.

      Francis M. Burke, J. A. Runyon, Pike-ville, for appellant.
    Robert Matthews, Atty. Gen., Robert Preston, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

On his trial for the murder of Jimmy Lee Thacker, the appellant, Otto Thacker, was convicted of voluntary manslaughter and sentenced to imprisonment for five years pursuant to a jury’s verdict. KRS 435.010; 435.020. A reversal of the judgment is sought on these grounds, as stated by appellant in his brief: (1) prejudicial error was committed in the admission of incompetent evidence offered by the Commonwealth, and (2) prejudicial error was committed by permitting the Commonwealth to read to the jury the transcript of the testimony given by Willard Reed Adkins on a former trial of this case.

The homicide occurred on December 24, 1963, at about ten p. m., in a small restaurant operated by Grace Chaney at Millard, a community in Pike County. There were seven people in the Chaney restaurant during the course of the events involved in this case. They were: Grace Chaney, the owner; Pearl Hardin, a waitress; Bill Ratliff, a customer — none of whom participated to any appreciable extent in the melee involved; the other members of this tragic cast were the appellant, Otto Thacker, and his companion, Willard Reed Adkins; these latter two had arrived at the scene shortly before Jimmy Lee Thacker, the victim, and his friend, Paul Ed Justice. In an effort to minimize confusion, we shall refer to Otto Thacker as appellant, Jimmy Lee Thacker as the victim and use the surnames of the other actors in the drama.

The night was bitter cold; the highways were burdened with snow and ice. The Chaney restaurant was heated by a coal stove. Appellant and Adkins entered the restaurant a short time before the victim and Justice arrived; Chaney, Hardin and Ratliff were already there when appellant and Adkins came in. Adkins was sitting in a chair — with the back of the chair turned in front of him — near the stove. Appellant was seated in a booth with Hardin; Chaney was standing nearby appella’*’ The record reflects that all seven of the persons named had consumed some alcoholic beverages; the extent of the drinking is not clear, but as to appellant, Adkins, the victim, Justice and Ratliff, the evidence indicates that each had had “several drinks.”

When Justice and the victim entered the restaurant, the victim uttered a “to whom it may concern” inquiry — “Why don’t you have a G- D- fire built?” Adkins replied, “We kept a fire last night, it’s your turn tonight.” The fatal struggle was precipitated.

The victim apparently seized the chair on which Adkins was seated, and, according to Adkins, the victim “stomped” Adkins in the stomach. These two men became locked in close combat, with Adkins being “down” most of the time. Justice entered the fray in support of the victim. Various convenient missiles were hurled, including catsup bottles, cups, pickle and mustard jars and anything available. There is some evidence (to which we shall later refer in greater detail) which indicates that appellant intervened in the fight, and that the violent combat ceased abruptly just after appellant became a participant.

Appellant and Adkins left the restaurant in a hurry. They entered appellant’s car and drove away, but not before Justice had attempted to halt the car’s progress by shooting at its tires with a .22 caliber pistol. A couple of the bullets struck the a r, but did not serve to impede its departure.

There was evidence indicating that the victim had left the restaurant and approached the appellant’s car, begging to be taken to the hospital — this is denied by appellant.

Justice noticed that the victim was bleeding profusely just after appellant and Adkins left. He observed a small cut on the victim’s throat, from which the blood was flowing freely. Justice drove the victim to the hospital at Pikeville, some eleven miles away. There was some slight lapse of time —just how much lapse is not clear — between the end of the fighting and the departure of Justice and the victim for the hospital. The victim died about five minutes after he reached the hospital, as the result of the stab or cut wound upon his throat.

Pearl Hardin, the waitress, testified that she had a minor role in the fighting. While the victim and Adkins were wrestling with the chair, Hardin “grabbed at the chair,” but “didn’t catch it.” She said that she “got hold” of the victim at one point, but he hit her, and in her words: “ * ⅜ * and from then on I couldn’t do nothing with them. I tried to keep them apart, but I couldn’t do nothing with them by myself.” After all the men had left, Hardin assisted Chaney in mopping and cleaning up the mess. During this she found a knife in the area where some of the fighting had occurred. It was identified as a “Tree” brand, three-blade pocket knife. The largest of the three blades of the knife was partially open when Hardin found it. It should be observed that another knife, identified as a “Case” knife, was pointed out to an officer by Chaney, four days after the killing. The latter was behind the refrigerator, but in plain view, the officer said. The “Tree” .knife was in a broken pop-bottle, and the officer said that a red substance was visible on the “Tree” knife and along the top edge of the broken bottle. There was evidence linking appellant with one of the knives. There had been an earlier trial of this case, at which the jury was unable to agree. Hardin had testified in the first trial. The Commonwealth had procured an indictment against her for false swearing after the first trial, predicated upon her testimony in the first trial. At the trial from which this appeal arises Hardin had her personal counsel to protect her interests as she was interrogated. The first claim of error by appellant relates to the questioning of Hardin. After numerous preliminary questions, the attorney for the prosecution asked whether Hardin had seen the appellant approach the victim and Adkins as they were fighting, and, omitting objections and rulings, this occurred:

“Q 118. My question is were you there, or did you see Otto Thacker come up there where those boys, Reed Adkins and Jimmy Lee Thacker, were wrestling on the floor there?
A. No, I never seed Otto come in.
Q 119. You didn’t see him come in?
(No answer to this question appears of record)
Q 120. You testified before the Pike County Grand Jury in March of 1964 in this case, did you not, Pearl?
A. Yes, sir.
******
Q 122. I will ask you if this question was asked you, and if you made this answer—
******
Q 123. Did you see Otto Thacker rush up where these boys were fighting?
A. Let me explain this to you. You see, they were throwing teacups and everything they could get their hands on, and when I run to him and grabbed hold of him and after this, Jimmy Lee Thacker was laying on the floor — well, standing on his feet, and when I took his arm and pulled him away, this knife, or whatever it was, flew out of his hand.
******
Q 124. Do you remember making that statement? Out of whose hand?
******
Q 125. Out of whose hand?
* * * * sje *
‘Q 126. Out of whose hand?
A. Otto Thacker’s’
Did you make the answer—
A. No.
Q 127. I will ask you if this question was asked you and if you made this answer:
‘Q. You saw the knife in his hand?
A. No, not for sure in his hand, when I jerked his arm, I saw the knife hit the floor’.
(No answer to the question appears of record)
Q 128. I will ask you if this question was asked you and did you make this answer ?
‘Q. Was Otto Thacker’s hand near the throat of Jimmy Lee Thacker?
A. Yes, it was.’ ”
(No answer to the question appears of record)

The witness had not made any positive assertion that appellant did or did not do anything. Her testimony was negative. She was offered as a witness for the prosecution. The questions and answers extracted from the testimony of the witness before the grand jury did not contradict any affirmative testimony given by the witness at the trial. In these circumstances, we are not able to distinguish this case from Davidson v. Commonwealth, Ky., 394 S.W.2d 911; McQueen v. Commonwealth, Ky., 393 S.W.2d 787; Click v. Commonwealth, Ky., 269 S.W.2d 203 and Webb v. Commonwealth, Ky., 314 S.W.2d 543. The admission of the prior “inconsistent” statements was erroneous and prejudicial.

Complaint is made that the transcript of the testimony of Adkins on the first trial was permitted to be read as the evidence of Adkins on the second trial. The prosecution announced ready when the case was called for the second trial, and made no intimation that Adkins would not testify in person. However, on the third day of the trial counsel for the.prosecution made known to the trial judge that Adkins was not available. A voir dire hearing reflected that subpoena had been timely issued for Adkins, and diligent efforts had been made to locate him — all negatively. Thereupon the court permitted the transcript of Adkins’ prior testimony to be read. In the circumstances at hand this was proper. See RCr 7.22 and Noe v. Commonwealth, Ky., 396 S.W.2d 808. All of the requirements upon which such procedure must be predicated are present here. Therefore, it was proper to permit the transcript to be read, but it was subject to objections as to relevance and competence.

The appellant contends that the same error was committed as to Adkins as occurred with respect to Hardin, in that his prior “inconsistent” statements were made the basis for “contradiction” of negative testimony. However, we find that Adkins substantially admitted that he had made the former statements and that they were true. Inasmuch as the problem at hand seems to arise with increasing frequency, we deem it appropriate to observe that when a “turncoat” witness — or one who evinces a predeliction to recant from a former incriminating statement — has failed to testify to any affirmative fact, the prosecution (or defense) should ask leave of the trial judge to examine the witness in chambers in an effort to refresh his recollection, by use of the prior statement, if desired. It may be that the memory of the witness will indeed be refreshed, in which event it would be appropriate to question the witness before the jury in due course. On the other hand, if the witness denies the statement, and persists in his lack of recollection, the adverse and improper effect of permitting the jury to hear the purported statement read will be avoided. We point out that it may or not be appropriate to use the prior testimony of Adkins at another trial, depending upon the then showing as to his availability and the diligence in obtaining his presence.

The judgment is reversed for proceedings consistent with the opinion.


author: HILL, Judge.

text:
    Boone JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.

      Terry L. Hatchett, Glasgow, for appellant.
    Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

By this appeal Boone Jones seeks to reverse his conviction under the Habitual Criminal Act, KRS 431.190, under which he received a life sentence. He maintains in the exhaustive brief filed by his court-appointed attorney that (1) his substantial rights have been violated by failure of the Commissioner of Mental Health to examine him pursuant to KRS 203.340, and failure of the trial court to require a bill of particulars; (2) KRS 431.190, known as the Habitual Criminal Act, is unconstitutional; (3) the evidence was not sufficient to convict; and (4) the instructions were erroneous.

The prime offense charged in the indictment was storehouse breaking. The first felony conviction was described in the indictment as having been accomplished in the Barren Circuit Court April 26, 1949, on a charge of rape, and the second conviction alleged was obtained in the Warren Circuit Court January 22, 1958, on a charge of forgery.

Appellant and one Melvin Pedigo were caught inside the store of Richardson Brothers at Eighty Eight, Kentucky, on the night of May 2, 1965. They were held at bay until the sheriff arrived.

On May 24, 1965, the trial judge wrote a letter to the superintendent of Western State Hospital requesting that appellant be examined by a psychiatrist and a report of such examination be made as directed by KRS 203.340. The letter was answered by Dr. J. Wysocki, Clinical Director of Western State Hospital, in which he stated the examination could not be made before June 1 due to holidays between May 28, the date of his letter, and June 1. Appellant was never examined.

In discussing a similar question raised under the last-mentioned statute, this court said in Harrod v. Commonwealth, 311 Ky. 810, 226 S.W.2d 4, 8 (1950), that:

“The purpose of the Act is to permit the Department of Welfare to determine whether one indicted under the Habitual Criminal Act should be a charge of that Department of the State in one of its penal institutions or in one of its mental hospitals. * * * That this was the sole intent of the Legislature in passing the Act may be gathered from subsection (3), where it permits the director of the Department to decline to inquire into the mental condition of the prisoner. It is manifest that the prisoner acquires no right to such an examination under the statute itself.”

The right of a prisoner whose sanity is in doubt is governed by RCr 8.06, the pertinent part of which is as follows:

“If upon arraignment or during the proceedings there are reasonable grounds to believe that the defendant is insane, the proceedings shall be postponed and the issue of sanity determined as provided by law.”

There was no question of sanity raised at any time by appellant or his attorney.

There was no violation of the substantial rights of appellant in connection with his mental situation.

Appellant complains he was entitled to a bill of particulars under RCr 6.22. He moved for such bill on June 4,1965, the day of his trial. RCr 6.22 provides: “The court for cause shall direct the filing of a bill of particulars. A motion for such bill may be made at any time prior to arraignment, or thereafter in the discretion of the court.”

The indictment charges defendant was caught inside the store of another and gave the dates, charges, courts in which he had twice before been convicted and stated that the crimes were committed progressively. What else was there to state in the indictment? We find appellant was not entitled to a bill of particulars. He was fully apprised of the detailed nature of the charges against him.

It is next argued on behalf of appellant that inasmuch as there has recently been “an evolution and a revolution in thinking with regard to punishment for crime, and with reference to rights of the accused in very recent past,” this court should reexamine its long line of cases upholding the constitutionality of habitual criminal laws of this State and declare those laws unconstitutional. Since long before the end o'f the last century, habitual criminal laws have been upheld in this jurisdiction. Cf. Taylor v. Commonwealth, 3 Ky.Law Rep. 783; Chenowith v. Commonwealth, 11 Ky. Law Rep. 561, 12 S.W. 585; Combs v. Commonwealth, 14 Ky.Law Rep. 245, 20 S. W. 268; Turner v. Commonwealth, 191 Ky. 825, 231 S.W. 519; Lovan v. Commonwealth, 261 Ky. 198, 87 S.W.2d 381; Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757; and Barber v. Thomas, Ky., 355 S.W. 2d 682.

The trial of one charged with a crime and with having been previously convicted does not constitute double jeopardy. The penalty is merely increased for a violation of the prime offense charged. The Habitual Criminal Act is wholesome, time-tested, and approved by the wisdom of generations. We are not at all inclined now to discard it even in the face of so-called “evolution and revolution” in thinking.

Appellant urges the evidence relative to the former convictions was not sufficient to convict under the present indictment. The clerks of the Barren and Warren Circuit Courts testified and read from their respective records. Of course, they did not physically introduce their order books. This was unnecessary. We find the evidence of former convictions sufficient. Cf. Dunnington v. Commonwealth, 231 Ky. 327, 21 S.W.2d 471.

Appellant assails the evidence on former convictions because it is not shown by the testimony that the trial judge signed the orders. Appellant did not ask whether they were signed, and the original records were there. It will be presumed the presiding judges performed their duties by signing their orders.

Appellant complains that there was no proof that the previous crimes were “committed.” It is unnecessary that the Commonwealth again prove the commission of the previous crimes, only that he was previously “convicted.”

Finally, the instructions are questioned. Instruction III required the jury to find defendant guilty of the prime offense covered by Instruction I and provided further that if they find he was convicted in the Barren Circuit Court April 26, 1949, of the crime of rape and convicted January 22, 1958, in Warren Circuit Court on a charge of forgery, and that said crime of forgery “was committed after the defendant’s conviction on April 26, 1949,” they should find him guilty and fix his punishment at confinement for life. This instruction substantially meets the requirement in Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728.

Instruction IV authorized the jury to inflict the lesser penalty (one to five years) if they had a reasonable doubt that defendant had been proven guilty of the two previous convictions. This instruction was more favorable to appellant than it should have been. It could have provided a double penalty as provided by KRS 431.-190 had the jury found appellant was proven to have been convicted only once before. He is in no position to complain of an instruction more favorable than the law allows.

It is the opinion of this Court that no errors occurred during his trial that substantially prejudiced his rights. The judgment is therefore affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Sanford GIBSON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Rehearing Denied April 22, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Tildón McMasters, L. A. Faurest, Eliza-bethtown, for appellant.
    J. T. Hatcher and Hatcher & Lewis, Eliz-abethtown, for appellees.
   HILL, Judge.

The Commonwealth appeals from a judgment entered pursuant to a verdict for $5,-600 for 7.82 acres of land taken and $7,900 for damages to the remainder of appellees’ farm which contained 57.69 acres before the taking. The land sought to be condemned, near Clarkson, was to be and has by now been used in the construction through Grayson County of the Western Kentucky Parkway, a limited access toll road.

Appellant complains (1) incompetent evidence was permitted, and (2) that the verdict is not supported by the evidence.

The appellees were permitted to introduce evidence of the sale of a lot 90' by 200' located across the road from appellees’ farm. The sale of this lot took place November 19, 1962, according to the deed, which was recorded the day before the trial of this action. The lot was sold by ap-pellees to a sister of Mrs. Gibson who resided in Louisville. Appellees contend the sale of this lot was a good faith sale of land of comparable value and was therefore competent as evidence of value in this condemnation case. Appellant argues the transaction is incompetent because entered into between appellees and members of their family and implies it was not in good faith and only entered into to be used as evidence in this case. Appellant points out that the lot was not marked off or designated by any natural or planted objects and that there was no intention on the part of the grantees to use the lot.

It is our conclusion that evidence of this sale, although a transaction between relatives and consummated immediately before the trial of this case, nevertheless, is competent for what it is worth. Of course it is proper, after the introduction of such evidence, to allow the appellant the opportunity to show the entire circumstances so that the jury may finally determine whether the sale was a good faith one and if it was a comparable sale.

The next and final argument presented on behalf of appellant asserts that the “verdict is not supported by the evidence.” We shall treat this as a contention that the verdict is excessive.

This case was tried before the opinion was handed down in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963). The witnesses separated the various items of damage. Since we are reversing this case on the ground the verdict is excessive, the next trial, if there should be one, should be conducted according to the rules in Sherrod.

In addition to the land taken, a tract containing 3.77 acres is cut off from the rest of the farm. A black top road runs parallel with this tract and parallel with the Western Kentucky Parkway. However, there is a creek running along side the 3.77 acres between this tract and the black top road, so that appellees’ access to this small tract has been impaired. The appellant has not and does not intend to build a bridge across this small creek to the small isolated tract.

The access of appellees to Kentucky Highway 224 has not been materially affected except as above noted as to the isolated 3.77 acres, although Ky. 224 has been widened about fifteen feet.

Boyd Roe and R. W. Crabtree, state-employed appraisers, testified for appellant. They stated that they had examined numerous comparable sales; specifically, six recent sales that averaged $245 per acre. Crabtree testified he examined seventy sales, and that he considered all of them in arriving at his valuation. They fixed total damages at $4,745, which included $2,000 for the 7.82 acres taken.

Appellee Sanford Gibson testified and introduced a number of his neighbors including the county court clerk. Gibson testified his farm was worth $54,100 before and $33,050 after the taking for a difference of $21,050.

Jesse Gibson, a nephew, gave similar testimony fixing the difference at $22,500.

Filmer Philpot fixed the difference at $21,300.

Two other witnesses gave substantially the same figures as the above witnesses, one giving a difference of $20,000 and the other $20,650.

Following is a representative breakdown of the testimony of appellees’ witnesses regarding appellees’ damages:

“2 acres fronting on road taken @ $4,000 per acre $8,000
Remaining 6 acres taken @
$300 per acre 2,000
Chicken house 700
Damage to rental house 2,000
Damage by being cut off from water 1,800
Damage by reducing size of farm and severing 3 + acres 5,000 Damage caused by fill in front of farm 1,800
$21,300”

Only one item of improvement was included in the land taken, a small chicken house. A photograph in this record clearly demonstrates the ridiculously excessive valuation of $700 placed on it by appellees’ witnesses.

The $2,000 item for damage to the tenant house is entirely unsupported by the evidence except for conclusions, although the right-of-way does extend to within twenty-four feet of the rent house. We are unable to understand how the after value of appellees’ farm could sustain $2,000 damage by reason of the right-of-way being near the tenant house.

The item of $5,000 for “reducing the size” of the farm and the 3.77 acres cut off is so palpably excessive as to shock the conscience at first blush.

The amount of the verdict of $13,-500 is more than $1,700 per acre for the land taken. While we recognize about two acres of that taken was suitable for residence purposes and within two-tenths of a mile from Clarkson and that six acres taken was good, well-drained tobacco land, yet on the whole we believe the verdict grossly excessive and should be reversed. Commonwealth, Department of Highways v. Darch, Ky., 390 S.W.2d 649 (1965).

Wherefore, the judgment is reversed with directions to grant appellant a new trial consistent with this opinion.


text:
    Estil MARTIN et al., Appellants, v. KENTUCKY WEST VIRGINIA GAS COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.
    Rehearing Denied April 22, 1966.
    Cordell H. Martin, Hindman, D. G. Boleyn, Hazard, Clifford Martin, Baltimore, Md., Joseph J. Leary, Rudy Yessin, Frankfort, for appellants.
    Paul C. Combs, C. Kilmer Combs, Pres-tonsburg, Boyle, Bilby, Thompson & Shoen-hair, Tucson, Ariz., Francis L. Rice, Pike-ville, Donald Harkins, Danville, for appel-lees.
   CLAY, Commissioner.

This action involves conflicting claims to mineral rights in a tract of land in Knott County. Appellees trace their title to the Commonwealth. Appellants’ claim ultimately must be based on adverse possession (although several deeds are involved).

Appellants claim through Louanza Hall, the wife of the grantor through whom ap-pellees claim. No actual adverse possession was proved. Her title, if any, was based on constructive possession of a certain boundary traceable to a deed from William Johnson to John Johnson, dated 1824. The description in that deed began at a certain point on the west side of Beaver Creek, thence running up the creek to a “conditional line”. No other boundaries are described. Even if it was not obvious on the face of the deed, there was substantial evidence that this description was so vague and uncertain that the tract covered by this deed could not be ascertained.

The claim of adverse possession under color of title must be to well defined boundaries. Johnson v. Johnson, 213 Ky. 588, 281 S.W. 542. We do not have that here.

Even assuming Louanza could have claimed possession under color of title, it would be difficult to find it adverse as to her husband, with whom she lived.

Some question was raised in the case concerning whether appellees were estopped to deny title by virtue of an earlier oil and gas lease, but this contention is presented by only one sentence in appellants’ brief and we find no merit in it.

The findings of the Chancellor indicate that careful consideration was given to the many issues raised in this case and it is not shown that his findings of fact were clearly erroneous or that his conclusions of law were incorrect.

The judgment is affirmed.


text:
    Prince L. STEPHENS, County Judge, Appellant, v. J. S. HICKS et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.
    John B. Breckinridge, Lexington, George M. Catlett, Catlett & Amato, Frankfort, for appellant.
    R. B. Bertram, Bertram & Bertram, Monticello, for appellee.
   HILL, Judge.

The appeal and cross-appeal herein question the validity of an order of the Mc-Creary County Court entered August 25, 1965, “reapportioning” McCreary County into three in lieu of eight justices’ districts. This appeal and cross-appeal are from a judgment of the McCreary Circuit Court upholding the county court order but postponing its effective date until after the November 1965 general election.

On July 6, 1965, a petition was filed in McCreary County Court asking for a reapportionment of the county into justices’ districts authorized by KRS 25.680 to 25.700. On the same date appellant, Prince L. Stephens, county judge, entered an order of reapportionment. On July 26, 1965, he entered an order appointing commissioners with directions to act within twenty days as required by statute. The commissioners filed their report August 14, 1965, creating three in lieu of the eight districts that had existed since the creation of Mc-Creary County in 1912. Their report was ordered filed and to lay over until August 26, 1965, for exceptions, which were duly filed. On the trial of the issues raised by the exceptions, the county judge on August 26, 1965, entered an order reapportioning in accordance with the report of the commissioners.

This suit was filed in the McCreary Circuit Court seeking a writ of prohibition against appellant, the county judge, to enjoin the enforcement of the county court order.

The judgment of the circuit court upheld the county court order but further provided that: “However, to prevent confusion, the judgment so entered reapportioning the county into justices’ districts is not to become effective until after the next regular November Election, which is November 2, 1965.”

From this judgment the county judge, who will be referred to herein as appellant, appealed. A number of interested citizens, including the candidates nominated for justice of the peace at the May 1965 primary election, filed cross-appeal; they will be designated herein as appellees.

Appellant complains on this appeal of only that part of the judgment of the circuit court which postponed the effective date of the judgment until after the November election.

Appellees take the position the county court acted without jurisdiction because its order was entered on a date other than at a “regular term,” and contends the appeal should be dismissed for violation of RCA 1.070, requiring the filing of a transcript of the evidence heard by the county judge on the question of publication of notices required by KRS 25.680. Appellees also argue that inasmuch as the county court judgment is void, the circuit court had jurisdiction to entertain a petition for writ of prohibition.

We reverse the judgment on appeal as well as on the cross-appeal without reaching the questions presented by the parties. ⅝

The authority for reapportioning justices’ districts is embodied in KRS 25.680, from which we quote:

“A county may be reapportioned into justices’ districts under the provisions of KRS 25.690 and 25.700 at any county court term four years after a previous apportionment, but not within sixty days previous to an election for justice of the peace.” (Emphasis added.)

By law, the year in which the reapportionment was attempted (1965) was one in which justices were nominated and elected. At the time of the entry of the order in question, nominations had been made at the May primary election for the eight old districts. We conclude that “an election” within the meaning of the above statute embraces a primary election. To add to the confusion already existing in the reapportionment laws, recently the date for holding the primary election was by law moved up to May.

Any other interpretation of the statute in question would lead to endless confusion and disruption of democratic processes. It is true some of our early opinions have held that an election did not include a “primary election.” Cf. Wilson v. Dean, 177 Ky. 97, 197 S.W. 547 (1917); Montgomery v. Chelf, 118 Ky. 766, 82 S.W. 388 (1904); Morgan v. Goode, 151 Ky. 284, 152 S.W. 584 (1912) ; and Hodge v. Bryan, 149 Ky. 110, 148 S.W. 21 (1912). However, in the Wilson case that part of the opinion which holds a “primary election” is not “an election” under the statute here involved was pure dictum as the opinion points out on page 548 of 197 S.W. that “it is not deemed necessary or essential to a determination of this cause that but one question be considered * * * ” and that question concerned the power of the circuit court to grant a writ of prohibition against an inferior court.

The Montgomery case, supra, stands for the proposition that Section 148 of the Constitution did not contemplate a “primary” election in prohibiting more than one election in any one year. In this situation, to hold an election included a “primary election” would effectually prohibit the holding of a primary election at all. The Morgan case, supra, was likewise one involving the interpretation of Sections 148 and 147 of the Constitution.

Hodge v. Bryan, supra, declared that a “primary election” is not embraced by Section 6 of the Constitution.

Our conclusion in the present case really does not overrule the earlier opinions referred to above. We have a situation in the case at bar which not only justifies but demands a different interpretation of the word “election.” That the difference in the context in which a word is used may authorize a different interpretation is elementary. Anyway, the orderly selection of public officers logically demands that any reapportionment must be done before a “primary” election. The reasons are obvious.

It is unnecessary to discuss other questions raised.

The judgment is reversed both on appeal and cross-appeal with directions to enter a judgment declaring the reapportionment order void and enjoining its enforcement.


text:
    Larry BROWN et al., Appellants, v. Frances P. WILSON, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.

      Stanley A. Stratford, Campbell & Strat-ford, Louisville, for appellants.
    J. Walter Clements, Louisville, for ap-pellee.
   DAVIS, Commissioner.

Larry Brown, age four, was struck by an automobile driven by the appellee. In his suit for damages a jury returned its verdict denying recovery. This appeal seeks to reverse the ensuing judgment for asserted errors pertaining to the instructions and rulings upon proffered evidence.

The accident occurred August 11, 1961, at or near the intersection of Oak and 23rd Streets in Louisville. Oak Street is the preferred street; it runs east and west, with one-way westbound traffic. 23rd Street runs north and south and affords two-way traffic. Boulevard stop signs require vehicular traffic on 23rd Street to stop before entering or crossing Oak Street. There is no marked crosswalk for pedestrians crossing 23rd Street between the southeast and southwest corners of 23rd and Oak Streets. However, there was a white stripe, referred to in the evidence as a “stop” line for cars, extending from the southeast corner of 23rd and Oak to the center line of 23rd Street.

Larry had accompanied his two older sisters (Karen, age seven, and Laverne, age twelve) to a drive-in confectionery situated on the southeast corner of the intersection. The three children left that place and attempted to cross 23rd Street from the southeast corner to the southwest corner of the intersection of 23rd and Oak Streets when the unfortunate accident occurred.

There is substantial difference in the evidence as presented for appellant and appel-lee. For appellant the evidence indicates that the three children started to cross 23rd Street, with Laverne in the center and Larry holding her left hand. A north-bound car driven by Wayne Bolin approached the intersection, causing the three children to step back to the curb. The Bolin car stopped momentarily at the Oak Street stop sign, and then proceeded northwardly across Oak Street; as it did so the three children resumed walking westwardly across 23rd Street. When they reached approximately the center of 23rd Street, Laverne observed the automobile of appellee, travelling south-wardly across Oak Street, and approaching the point where it would cross the unmarked crosswalk being used by the children. At this juncture Laverne and Karen stopped, but Larry continued to walk west-wardly and was struck by appellee’s car. According to appellant’s evidence, the Bolin ear had reached a point “about midway” in the intersection when appellee’s car was first observed by Laverne. According to Laverne, appellee’s car was also “in the middle of Oak Street” when she first saw it, and it was “coming at a fairly rapid rate of speed.”

Laverne testified that Larry “just walked out of my hand” and “he started to run after he saw the car,” apparently in an effort to avoid being struck by the car. The left front of the car struck the child, and he was dragged along under the left front wheel for a few feet; when the car came to rest the left front wheel was resting on the child’s right leg.

For the appellee, it was shown that she had stopped before reaching the intersection of 23rd and Oak, in order to allow her daughter to get out of the car to go to her place of work in a tavern on the northeast corner of 23rd and Oak Streets. Then ap-pellee drove to the stop line at Oak Street and stopped; she said that she observed a station wagon approaching from her left along Oak, and she supposed it would continue on Oak, but it was turned to its right into 23rd Street without signal. Thereupon appellee drove her car slowly across Oak Street (at about ten mph). Bolin’s car, she said, was then approaching the intersection from the south, and was “going in slowly for its stop” when appellee’s southbound car passed Bolin’s car. Appel-lee estimated that the front of her car had “cleared” Bolin’s car by about three feet when “out of the corner of my eye I saw this little boy running from the back of this other car.” Appellee said that she applied her foot brake and emergency brake and stopped the car about ten feet beyond the point of impact.

Interestingly, Wayne Bolin’s testimony tended to corroborate and contradict the evidence for appellant and appellee. Bolin corroborated the appellant’s evidence to the extent that he recalled that the three children walked out in front of his car and then went back to the east side of 23rd Street; he contradicted appellant’s evidence by saying that he remained stopped at the intersection until after the accident occurred. He was equally certain that he had been completely stopped before appellee drove across Oak Street, although appellee’s evidence was to the contrary. Bolin said that the children walked around behind (south of) his car as he sat at the intersection, and that Larry came from behind his car into the path of appellee’s car.

The trial court gave only one instruction relating to the matter of liability, which is as follows:

“1. If you believe from the evidence that the plaintiff, Larry Brown, suddenly darted from behind a standing automobile across the center line of 23rd Street into the defendant’s driving lane and was struck by her automobile, or that he ran into the left front wheel thereof when the defendant’s automobile was so close to him that she could not by the exercise of ordinary care have perceived his danger, stopped her car or changed its direction, or slackened its speed, so as to avoid injury to him, then you will find for the defendant, Frances P. Wilson. But unless you so believe from the evidence, you will find for the plaintiff Larry Brown.”

Although the instruction would appear to be quite favorable to appellant, it is our view that it was prejudicially erroneous. It is to be remembered that appellant, age four, was incapable of contributory negligence. Frederick v. Hall, Ky., 375 S.W.2d 400; Ward v. Music, Ky., 257 S.W.2d 516. The only defense available to appellee was such sudden appearance of the appellant as precluded her avoiding the accident. This appearance was not “sudden” if appellee had been able to learn of its imminence by the exercise of ordinary care. The point is that the defense of sudden emergency presupposes that, and is available only when, the defendant is exercising ordinary care. Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448.

Upon another trial, if the evidence is substantially the same as at the first trial, the court should instruct the jury:

It was the duty of the defendant, Frances P. Wilson, upon the occasion of the accident, to exercise ordinary care in the operation of her car, and this duty included her duties to operate her car at a reasonable speed, to have her car under control, and to keep a lookout for persons on the street, including the plaintiff, Larry Brown; the law of this case is for the plaintiff, Larry Brown, unless you shall believe from the evidence that while the defendant, Frances P. Wilson, was observing the duties herein set out, the plaintiff, Larry Brown, appeared so suddenly in the path of her car that she could not avoid injuring him with the means then at hand and under her control.

We think the instruction fairly incorporates the principles approved in Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448, and Hymarsh’s Adm’r v. Paducah Traction Co., 150 Ky. 109, 150 S.W. 9. As succinctly said in the latter opinion:

“The duty to keep a lookout and use ordinary care to avoid injuring persons using the track required the motorman, not only to use ordinary care to avoid injuring decedent after his peril was discovered, but to use ordinary care to discover his peril.” Id. 150 S.W. 10.

We cannot accept appellant’s contention that the jury should have been instructed that appellee had the duty to remain stopped on 23rd, before crossing Oak, until she saw that all pedestrian traffic had cleared the crossing on the south side of Oak. The statute relied on, KRS 189.330 (5), relates to other vehicles in or near the intersection, and has no application to the factual situation at bar.

The judgment is reversed for further proceedings consistent with the opinion.

MOREMEN, C. J., dissents on ground that the instruction as given amply stated the law to the jury.


author: MONTGOMERY, Judge.

text:
    Rudolph HAMILTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.

      Hobson L. James, Elizabethtown, for appellant.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

Rudolph Hamilton was convicted of the willful murder of Ervin Basham and was sentenced to death. On appeal he urges that the court erred in refusing to grant a continuance, in the admission of certain testimony, and in refusing to discharge the jury because of the misconduct of the jury and because of the improper opening statement and closing argument of counsel.

A lone robber shot Ervin Basham in the back during the course of a holdup of Basham’s Liquor Store. Basham died almost instantly. The robbery occurred about ten o’clock on Saturday night, December 28, 1963. The store was located in Meade County on U. S. Highway 60 about three miles from Fort Knox Military Reservation. Appellant was then in the United States military service and was stationed at Fort Knox.

A helper in the store was an eyewitness to the slaying. Two other witnesses who lived in an apartment in the rear of the store heard the shot and quickly went through their doorway into the small anteroom. They saw Basham fall. They also saw the holdup man backing out of the front door of the store with a pistol in his hand. He brandished the weapon and demanded that they stay back. One of these two witnesses later identified appellant in the courtroom. The eyewitness to the slaying also identified appellant, and testified that at gun point he was forced to take $319 from the cash drawer and give it to the robber.

The slayer fled. One of the witnesses took a pistol that was hanging on the wall inside the apartment and exchanged fire with the robber. An auto with a single occupant had been waiting near by.

Appellant contends that a written statement made by him was improperly admitted into evidence because it had been coerced after he had requested counsel and had not been furnished any. The statement described in detail the related events, before and after, and the holdup. In the statement appellant said that the holdup had been planned with Sylvester Coleman and Rodney Faison. See Faison v. Commonwealth, Ky., (decided March 25, 1966).

The sequence of events prior to the statement is important. The holdup occurred about ten o’clock on Saturday night. The investigation was conducted by civil authorities and Fort Knox Criminal Investigation Department officers. Appellant was taken into custody by military authorities about 4 a. m. on Sunday. He was questioned by them about two hours and released. Appellant was again taken into custody by the military authorities about 2 or 3 p. m. on Monday. At the top of the statement are two notations of timer “1520 hours (3:20 p. m.) 30 Dec 63” and “1545 hours (3:45 p. m.) 30 Dec 63.” According to the testimony this is about the time the statement was reduced to writing.

Appellant’s statement was typewritten on a military form, with additional pages attached. It consists of a narrative statement followed by some questions and answers. The statement was typed by Reis R. Kash in the presence of LeRoy F. Lussier. Lewis J. Massey, another C.I.D. investigator, was in and out of the room while the statement was being made.

The form on which the statement was made contained the following printed matter appropriately filled in at the beginning:

“I have been informed by Lewis J. Massey who stated he is an MP Criminal Investigator of the United States Army, and that he is conducting an investigation of murder/robbery of which I am suspected.
“The Uniform Code of Military Justice, Article 31, has been read and explained to me by Lewis J. Massey I understand that I do not have to make any statement whatsoever and any statement I make may be used as evidence against me.”

The form concluded with the following affidavit which was properly signed and executed by appellant:

“I Rudolph Hamilton, have read this statement which begins on page one (1) and ends on page —. I fully understand the contents of the entire statement made by me. The statement is true. I have initialed all corrections and have initialed the bottom of each page containing statement matter. This statement has been made by me freely without hope of benefit or reward, without threat of punishment, and without coercion, unlawful influence, or unlawful inducement.”

The statement was initialed as stated in the affidavit.

At the bottom of the form is a printed statement of the rights of an accused under the Uniform Code of Military Justice, Article 31; Title 10, United States Code, Section 1219; and the Fifth Amendment to the Constitution of the United States to the effect that an accused shall not be compelled to “talk.”

At the trial, upon objection being made to the introduction of the statement into evidence, the court heard testimony in chambers concerning its competency and admissibility. KRS 422.110(2). The only witness to testify at the hearing in chambers was Lussier, one of the C.I.D. investigators who took the statement. He testified that appellant at the time of being taken into custody was in the military service and was subject to the Uniform Code of Military Justice. He also testified as follows:

“Q 28. Did you, before he made any statement or before questions were asked him, inform him that anything he said would be subject to be used against him?
“A I was with Mr. Massey immediately after we identified ourselves to Rudolph Hamilton. And I read and advised him of his right under the Uniform Code of Military Justice. Mr. Massey advised him he did not have to make any statement and any statement he made could be used against him. Mr. Massey then informed him he was suspected of murder and robbery. Then the questioning began.
“Q 29. And the questioning did not begin until after he was informed he didn’t have to tell anything and it could be used against him?
“A We are bound by regulation.
“Q 30. And did you so inform him that he didn’t have to talk and that it could be used against him?
“A Yes, sir.
“Q 31. Before he ever made any statement?
“A Yes, sir.
“Q 32. Now was any inducement offered or held out to him in the way of immunity for him to tell anything about that?
“A No, sir.
“Q 33. Were there any threats made as to anything adverse that would or could happen if he didn’t make a statement?
“A No, sir.”

Lussier testified that appellant was without counsel while he was in custody prior to giving the statement; that after portions of a statement given by one Sylvester Coleman had been read to appellant he requested counsel; that he was then advised that “at that time under our regulations as long as he wanted to see counsel we could no longer interview him”; that the investigator sought to obtain counsel for appellant from the Judge Advocate General’s Section (the Law Department of the Army) but, apparently because of the holiday season, none was then available; and that appellant was then informed of the unavailability of counsel.

Lussier testified further: “I was then instructed by the Operational Officer that the State Police had jurisdiction and to turn Hamilton over to them. I went and informed Hamilton that at that time I was going to turn him over to the State Police, and would he accompany me. He stated at this time that ‘Coleman is lying and I want to see the matter cleared up.’ Hamilton said Coleman is lying and I want to clear this up. I told him again as long as he wanted counsel I could not talk to him. He then told me, I withdraw my request for counsel and said let’s talk about it, and this statement was the result of that.”

On this uncontradicted testimony the court held that the statement was competent and admissible as being voluntary. Tarrence v. Commonwealth, Ky., 265 S.W. 2d 52. Since there was no contradiction on the issue of voluntariness it was unnecessary to submit the issue to the jury. Cf. Karl v. Commonwealth, Ky., 288 S. W.2d 628.

It is urged that the statement is inadmissible under the rule in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. In Escobedo it was held:

“ * * * that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S., at 342 [83 S. Ct., at 795], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.”

This case is distinguishable from Escobedo because appellant had withdrawn his request for counsel before making his statement and because the investigating officers had effectively warned appellant “of his absolute constitutional right to remain silent.” It appears from the quoted testimony of Lussier heard in chambers by the trial judge and from the statements, warning, and affidavit contained in the incriminating statement, that appellant from the time he was first taken into custody and until the statement was made was fully advised as to his right to counsel, his right to refuse to make any statement, and that any statement made could be used against him. On the issue of coercion, appellant’s statement that “Coleman is lying and I want to see the matter cleared up” indicates the reason the appellant made the confession. This, coupled with his withdrawal of his request for counsel in the light of the repeated warnings of his rights, indicates that a thorough knowledge of his constitutional rights had been imparted to appellant and renders the confession a voluntary one, as it was so found by the trial judge. As was said in Carson v. Commonwealth, Ky., 382 S.W.2d 85, cert. denied 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed. 2d 825, these uncontradicted basic factual differences clearly distinguish this case from the Escobedo case. The finding of the weapon used, as pointed out by appellant, and other admissions subsequent to the statement likewise become admissible as flowing from the statement.

Other objections were made to the order of introduction of certain testimony and on the ground that the introduction of certain testimony constituted surprise, but an examination of these contentions reveals their lack of merit. Howard v. Commonwealth, 304 Ky. 149, 200 S.W.2d 148.

Appellant moved for a pontinuance when the case was called for trial. Three grounds are urged as bases for the motion. The first is the absence of certain witnesses. Two witnesses were not served with subpoenas because one was in the military service in Fort Lewis, Washington, and the other one was in Korea. Two others did not appear when the case was called for trial. Appellant filed an affidavit in which he set forth the testimony expected to be given by each witness. These statements were read to the jury. The testimony was cumulative. In Greenwell v. Commonwealth, 303 Ky. 78, 196 S.W.2d 884, such procedure was held not to be error.

Second, appellant filed an affidavit in support of his motion for ⅝ continuance in which it was stated that the Commonwealth’s attorney, while in conference in a witness room adjoining the courtroom, was heard to say “that it had been requested that a plea of guilty be made and a life sentence imposed.” While it is claimed that the words were spoken loudly enough for jurors to hear, it was not shown that any prospective juror did hear the words. The jury had not been impaneled at that time. The Commonwealth’s attorney filed a counteraffidavit in which he denied making the claimed statement. This affidavit was supported by affidavits of four other people to the same effect. This placed the matter within the discretion of the court to decide, and under the conflicting proof the finding of the trial court that no impropriety occurred is sustained by the evidence. Pennington v. Commonwealth, Ky., 371 S.W.2d 478.

The last ground urged for the continuance concerned the publication in a local newspaper of an article entitled “Tight Security Measures for Murder Trial.” The article contained a quotation from the sheriff, saying that anyone who desired to attend the trial would have to submit to a search. The article also quoted the Commonwealth’s attorney as saying that the death penalty would be sought. It was claimed that this newspaper article, and possibly others, would influence prospective jurors to the prejudice of appellant. In Dewberry v. Commonwealth, 241 Ky. 726, 44 S.W.2d 1076, a murder case, a death penalty conviction was affirmed despite evidence of strong feeling in the county against the defendant to such extent that troops were dispatched by the Governor to be present during the trial and to escort the defendant from the jail to the courthouse and back, and further despite the fact that counsel for the defendant was assaulted on the streets of the county seat.

Again, it was within the discretion of the trial judge to weigh and determine the effect of the notoriety and publicity concerning the trial as it might influence prospective jurors. On their voir dire the jurors who were finally selected to try the case were asked concerning newspaper arti-cíes, and all who had read newspaper articles declared under oath that regardless of the fact that they had read such articles they had no opinion in the case. It is, therefore, concluded that no abuse of discretion was shown. The motion for continuance was properly denied.

After the regular jury panel was exhausted a special panel of one hundred jurors was called. Following a roll call of the special panel and during a recess, O. H. (Hayes) Basham, a brother of the murdered man, had a conversation with two of the prospective jurors in open court and in the presence of all of the prospective jurors. Appellant, because of this, contends that his motion to discharge the selected jurors and the prospective jurors should have been sustained. In response to the motion, O. H. (Hayes) Basham admitted the conversation, named the prospective jurors, and stated that he did not discuss the case with either of them and that both prospective jurors were later called, discharged, and did not serve on the jury.

Familiarity with jurors, prospective or selected, by interested parties is suspect, but it is commonplace in many rural sections where the formalities of the law are not so well known or observed among people who are friends and acquaintances. No possible prejudice to the appellant is shown to have occurred since both prospective jurors were properly discharged.

Appellant complains of two incidents which are charged as misconduct of the jury during the trial. The first occurred when three Commonwealth exhibits, a pistol, a spent bullet and cartridge, and three test bullets and three cartridges, were shown to the jury. When this was done the members of the jury engaged in some conversation and discussion among themselves about the exhibits. There is no disclosure concerning the content of the conversation or discussion. It occurred in the presence of the trial judge who denied a motion to discharge the jury. He admonished the jurors not to discuss the exhibits as they were being passed among them.

The second incident occurred after the court had adjourned for the day when a juror, out of the presence of the appellant and his counsel, discussed with the trial judge his desire to ask a witness some questions. The next morning the juror, separated from the other jurors who were in the sheriff’s charge, was permitted to make known his questions in the presence of the judge, the appellant, and opposing counsel. On both occasions, it appears from the record, the judge advised the juror that he could not answer his questions as they would have to be asked of the witnesses.

Appellant insists that this conduct on the part of the juror constituted an improper separation of the jury and that it was especially prejudicial to appellant because one of the witnesses sought to be inquired of by the juror was recalled to the witness stand. The court sustained appellant’s objection to the witness’ testifying further. It is contended that this prejudiced appellant’s rights as it served to emphasize in the mind of the juror appellant’s reluctance to have the answers to the desired questions.

The key to the whole matter is in the nature of the questions sought to be asked by the juror. It developed that he was a gun expert. He desired to ask: When the test bullets were fired, was the gun fired with one bullet at a time or was the clip inserted and the gun fired in that fashion? And, he continued, if the clip had been lost two years ago, as stated, it was his opinion that there would be rust on the gun, and when he had examined the gun he was of the opinion that it was not rusty and the corrosion would have disappeared if fired with a clip.

In view of the testimony of eyewitnesses concerning the shooting of Ervin Basham, the questions appear immaterial. The identity of the appellant was the important thing. There was no question as to how Basham was killed. The identity of the gun in this case was of slight significance.

Under these circumstances there has been an insufficient showing of conduct amounting to prejudicial error, and the decision of the trial judge on the claimed jury misconduct will not be disturbed. Smith v. Commonwealth, Ky., 366 S.W.2d 902.

Various objections were made to the opening statement of a special prosecutor and to the closing arguments of the county attorney and Commonwealth’s attorney. The number of objections made indicates the commendable zeal of the defense counsel in seeking to protect appellant’s rights. The challenged parts of the opening statement contained an explanation of the employment of the special prosecutor and reference to the fact that a “death verdict” would be sought if the evidence warranted. Objection was also made that portions of the statement were argumentative. However, a reading of the statement viewed in the light of the seriousness of the offense reveals that there was little, if any, objectionable matter therein and certainly none that was prejudicial error.

The county attorney’s argument contained an appeal to the jury to wipe out crime, to make Meade County a place where law would be enforced, and to stamp out violence, killing, and robbery. He also commented that he had never heard a more flimsy defense.

In his closing argument the Commonwealth’s attorney made reference to the courteous treatment accorded appellant and to the' protection of his constitutional rights prior to the. trial. Objection was made that these matters were outside the record. Upon being reminded of such, the Commonwealth’s attorney then apologized and asked that the statements be stricken. An objection was sustained and the jury was told not to consider the statement of the Commonwealth’s attorney to the effect that the offense was the worst ever committed in the county while he had been Commonwealth’s attorney. The corrective action taken was sufficient as to each of these matters.

In closing his argument an objection was sustained to the statement “if you don’t impose the death penalty in this case, if you don’t, we might as well erect a neon sign on top of the courthouse saying to others —Free territory in Meade County.” The court refused to give an admonition or to discharge the jury. The Commonwealth’s attorney continued: “Then I’ll put it this way. If you don’t inflict the death penalty in this case, then you are going to open the door to every robber, to every person that wants to take advantage of a tavern operator — a store keeper, anybody who handles money in their place of business. You are going to open the door and tell them to come on in boy. If you don’t get it or get shot at — shoot him down. And then after it’s all over you get life. That’s what you are going to be saying.” Repeated objections were made to the last argument.

Appellant relies on May v. Commonwealth, Ky., 285 S.W.2d 160, and Parsley v. Commonwealth, Ky., 306 S.W.2d 284. The May case is distinguishable because the objectionable arguments were a plea for personal revenge, a plea for justice by harsh measures of punishment, and on matters outside the record, instead of sober consideration of all of the evidence.

The Parsley case is also distinguishable since the challenged argument contained so much that was objectionable, including matters outside the record, and efforts to cajole or coerce the jury, coupled with a failure of the trial court to sustain objections or to rule.

In reviewing the objections to the closing argument, objections were sustained or the argument was stricken except the argument concerning the effect of failure to inflict the death penalty. The imposition of a severe penalty as a method of stopping crime is proper argument. Brown v. Commonwealth, Ky., 357 S.W.2d 681. Reference to the effect of leniency on the part of juries is also permissible. Grigsby v. Commonwealth, Ky., 304 S.W.2d 782. Vigorous comment on the evidence pointing to accused’s guilt is also proper. Stumbo v. Commonwealth, Ky., 299 S.W.2d 115. Counsel may give his interpretation of the evidence and his recommendation as to the punishment which should be inflicted if the defendant should be found guilty. Lewis v. Commonwealth, 307 Ky. 733, 212 S.W.2d 269. Cf. Holmes v. Commonwealth, 241 Ky. 573, 44 S.W.2d 592.

The portion of the argument objected to came toward the end of the argument. It was an appeal to the jury to inflict the death penalty for an inexcusable killing. The comments were made in reference to the facts of the case and the counsel did not go outside the record. In Lawler v. Commonwealth, 182 Ky. 185, 206 S.W. 306, a similar argument was approved as constituting the reasons for the prosecutor’s opinion that the death penalty should be imposed. Chappell v. Commonwealth, 200 Ky. 429, 255 S.W. 90; Dalton v. Commonwealth, 216 Ky. 317, 287 S.W. 898; Cooksey v. Commonwealth, 235 Ky. 454, 31 S.W.2d 703. In view of the nature of the case and considering the latitude allowable to a prosecutor, the argument is not objectionable.

Judgment affirmed.