text:
    Joe T. HUDGINS, Appellant, v. Alphonse KRAWETZ et al., Appellees.
    No. 15810.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 16, 1977.

      W. James Kronzer, Kronzer, Abraham & Watkins, Houston, Thomas F. Webb, Webb, Stokes & Sparks, San Angelo, Rey Perez, Crystal City, for appellant.
    Robert Lee Bobbitt, Brite, Drought, Bobbitt & Halter, Richard J. Karam, Nicholas & Barrera, Inc., San Antonio, W. E. Casey, Carrizo Springs, for appellees.
   CADENA, Chief Justice.

Plaintiff, Joe T. Hudgins, appeals from an order of the district court of Zavala County sustaining the pleas of privilege of defendants, Alphonse Krawetz and wife, Jeune Krawetz, Elizabeth Krawetz Lang and husband, Carl D. Lang, and A1 Perkins, and transferring plaintiff’s suit to Bexar County, the domiciliary county of all defendants.

Plaintiff contends that the suit is maintainable in Zavala County under the provisions of Subdivision 14 of Article 1995, Tex. Rev.Civ.Stat.Ann. (1964), which requires that suits “for the recovery of lands . ., or to quiet the title to land” be brought in the county in which the land is located.

Since it is undisputed in this case that the land involved in this litigation is situated in Zavala County, it is only necessary to determine whether the suit is one for the recovery of land or to quiet title to land, and this determination is to be made solely from the facts alleged in the plaintiff’s petition, the rights asserted, and the relief sought. Scott v. Whittaker Pipeline Constructors, Inc., 517 S.W.2d 406 (Tex.Civ. App.—Austin 1974, no writ).

Plaintiff’s pleadings may be summarized as follows:

1. Gulf Energy and Development Company, identified in the remainder of this opinion as “Gulf,” employed plaintiff for the purpose of obtaining title to the minerals underlying the Krawetz Ranch in Zavala County. The fee simple title to the ranch was in Mrs. Lang, subject to a vendor’s lien held by her parents, Mr. and Mrs. Krawetz. In this opinion, the term “lessor” will be used to designate Mr. and Mrs. Krawetz and Mrs. Lang, while the term “lienholder” will be used to designate Mr. and Mrs. Krawetz.

2. Following negotiations resulting in an oral agreement, plaintiff prepared an oil and gas lease and an instrument subordinating the vendor’s lease to the interest of the lessee. These instruments, accompanied by a draft on the Broadway National Bank of San Antonio (herein identified as “Broadway”) in the sum of $56,295.00, representing the bonus payment, were delivered by plaintiff to lessor on September 17, 1975, after Gulf had secured an agreement by Broadway to honor the draft.

3. After Mrs. Lang had been informed by Broadway that the draft would be paid, the executed instruments were, in keeping with the agreement of the parties, delivered by lessor to Frost National Bank of San Antonio (hereinafter designated as “Frost”) with instructions that they be transmitted to Broadway for processing according to the terms of the draft. The draft recited that, subject to approval of lease form and title, it was payable within 22 days after receipt of the instruments by Broadway “and within 22 days after receipt of complete abstracts of title supplemented to date and received by Joe T. Hudgins, whichever be the latter.”

4. On September 22, 1975, Gulf deposited $100,000.00 with Broadway on which plaintiff was authorized to draw drafts. Broadway received the lease, subordination agreement, and draft on September 23 or 24, 1975.

5. On September 24, 1975, lessor agreed to convey the minerals beneath the surface of the Krawetz Ranch to defendants, Carl Lang and A1 Perkins, and instructed Frost to retrieve the instruments which had been transmitted to Broadway. The following day, in response to Frost’s request, Broadway returned the instruments to Frost and Frost delivered them to lessor. On September 27, 1975, lessor executed an oil and gas lease in which Carl Lang and Perkins were named as lessees. Carl Lang and Perkins had notice of the prior dealings between lessor and plaintiff and of the prior delivery of the lease, subordination agreement, and draft to Frost and to Broadway.

Plaintiff’s pleading also contained a count in trespass to try title, worded in the statutory form.

After alleging that he had acquired Gulf’s interest, plaintiff sought judgment (1) awarding him title to, and possession of, the minerals; (2) declaring the vendor’s lien subordinate to his interest as lessee; and (3) removing the cloud cast on his title by the September 27 lease to Carl Lang and A1 Perkins.

The parties agree that plaintiff’s suit may be classified as a suit for the recovery of land or to remove cloud from title in order to be maintainable in Zavala County under Subdivision 14, only if the facts alleged show that plaintiff held either legal or equitable title to the mineral estate.

Whether the facts alleged in the petition effected a transfer of some species of title depends on whether such facts constitute a delivery of the lease and subordination agreement.

In Barton v. Richardson, 47 S.W.2d 430 (Tex.Civ.App.—Texarkana 1932, writ ref’d), the grantor, after executing the deeds, accepted a demand draft and delivered the deeds and draft to his bank with instructions to deliver the instruments to the bank in Tyler, through which the draft was to be collected, and with whom grantee had made arrangements for payment of the draft. Grantee had been to the bank on March 12 and 13, but was informed that the instruments had not arrived.

Meanwhile, on March 13 grantee advised his bank to instruct the Tyler bank to return the instruments. The instruments arrived at the Tyler bank on the morning of March 14, and grantee instructed an officer of the bank to pay the draft and charge it to grantee’s account. At about noon of the 14th, while the officer with whom grantee had made arrangements for payment of the draft was out to lunch, a messenger from grantor’s bank arrived at the Tyler bank and another officer, knowing nothing of the arrangements which had been made by grantee, returned the instruments, which were eventually delivered to grantor by his bank.

The Texarkana Court held that the transaction was completed and title passed to the grantee when the deeds, with the draft attached, were delivered by grantor to his bank, saying that the draft accepted by grantor was, in legal effect, a promissory note, payment of which could have been enforced by grantor.

The Barton holding was based on the decision in Pou v. Dominion Oil Co., 265 S.W. 886 (Tex.Com.App.1924). However, in both Barton and Pou the facts showed that after delivery of the deeds and draft nothing remained to be done, or approved, by the grantee. The draft was to be honored and paid immediately upon receipt of the deeds and draft by the grantee’s bank.

Neither Barton nor Pou is controlling here, since in this case payment of the draft was not to take place until the title was approved by grantee. Neither of those two cases compels the conclusion that in this case the transaction was completed upon delivery of the instruments to Frost Bank so that, at that moment, legal title passed to plaintiff.

However, the facts alleged in plaintiff’s petition establish all of the elements necessary to constitute what is usually called a delivery in escrow or an escrow transaction. There was a delivery of the instrument of conveyance, without reservation of power to recall, to a third person (not merely as agent or custodian for lessor), with the intention that it be delivered to the lessee on the happening of a condition not specified in the instrument of conveyance. It is true that plaintiff’s pleadings do not embody the term “escrow,” but the legal consequences of facts do not depend on the descriptive terms used. See 1A Corbin, Contracts § 247 (1963).

Where a deed has been delivered as an escrow, a second delivery by the depositary to the grantee in the future is generally, if not always, contemplated, and in the usual case the second delivery is, in fact, made, although the rule is' that a second delivery is not, in fact, required. 22 Tex. Jur.2d Escrow § 12 (1961).

The function of the escrow transaction is to give security to both parties to an existing transaction. The grantor desires to retain at least some property interest to be assured of performance by the grantee. The grantee desires security that if he performs or the condition occurs, the property will be his. The courts have recognized the escrow transaction as a means of subserv-ing these desired functions. The result of judicial recognition of the escrow device is that the deposit of the instrument with the escrow agent creates new legal relations between grantor and grantee. Clearly, the grantee obtains an interest or right as the result of the initial deposit, it being clear that upon performance of the condition the courts will give immediate and full effect to the instrument of conveyance. The interest of the grantee prior to the fulfillment of the condition is, of course, something less than that complete ownership which is sometimes called “full title,” and it would seem clear that his interest is something less than “legal title.”

In Texas, this interest of the grantee named in a deed deposited in escrow has been held to be “equitable title.” In Cowden v. Broderick & Calvert, 131 Tex. 434, 114 S.W.2d 1166, 1169 (1938), the Court said: “While legal title did not pass to the lessee until the conditions of the escrow agreement were satisfied, the lessee had, from the time the lease was placed in escrow ... an equitable title to the leasehold estate or interest.” In Neal v. Pickett, 280 S.W. 748, 750 (Tex.Com.App.1926), it was said that an escrow has some effect from the beginning and originally vests equitable title in the grantee.

The parties here agree that the escrow agreement may rest in parol. See Johnson v. Freytag, 338 S.W.2d 257 (Tex. Civ.App.—Beaumont 1960, writ refd n.r.e.). In the case before us the lease recites that it was executed on September 17, 1975. The term of the lease is stated to be “five years from this date.” Lessee is required to commence drilling operations “on or before one year from this date.” Clearly, it was the intention of the parties that, upon performance of the conditions, the lease should take effect from the date of the delivery to the bank. See Cowden, supra, 114 S.W.2d at 1169.

It may be true, as defendant points out, that the cases holding that delivery of a deed in escrow vests equitable title in the grantee from the date of such delivery are not venue cases. But the holdings that, from the date of the initial delivery, grantee has equitable title are clear and unequivocal, and it cannot be said that whether equitable title passes is dependent on whether or not a defendant files a plea of privilege. If, as the parties agree, equitable title is sufficient to support a plaintiffs action in trespass to try title or to remove cloud, the facts alleged in plaintiffs petition are sufficient to entitle him to maintain such actions and the suit is one for the recovery of land and to remove cloud. The rule is that the nature of the suit is to be determined by the plaintiffs pleadings. The pleas of privilege filed by defendants cannot be considered as part of plaintiffs pleadings and can have no effect in the process of determining the nature of plaintiffs suit.

Since plaintiffs pleading alleges facts which entitle him to recover the land and to have the cloud removed from his title, and since the relief sought by plaintiff is recovery of title to and possession of the mineral estate and removal of such cloud, it is clear that venue of the suit is controlled by Subdivision 14 and is properly maintainable in Zavala County.

The judgment of the trial court sustaining the pleas of privilege of defendants is reversed and judgment is here rendered overruling such pleas of privilege.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Thomas H. JOHNSTON, Jr., Appellant, v. George W. SIBLEY, Appellee.
    No. 1054.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 17, 1977.
    Rehearing Denied Dec. 8, 1977.
    Guy W. Rucker, Richardson, for appellant.
    Timothy R. McCormick, Thompson, Knight, Simmons & Bullion, Dallas, for ap-pellee.
   MOORE, Justice.

This is an appeal from a summary judgment. Plaintiff, Thomas H. Johnston, Jr., brought suit for damages against defendant, Dr. George W. Sibley, for medical malpractice. Plaintiff alleged that he was referred to Dr. Sibley by Fireman’s Fund Insurance Company for an evaluative examination in connection with his claim against the insurance company for workmen’s compensation benefits; that the doctor negligently failed to diagnose his disability and issued a report to the insurance company showing he suffered no disability whereas he was, and still is, suffering from at least permanent partial disability. He alleged that such negligent conduct resulted in a denial of his claim for workmen’s compensation insurance, as well as other benefits, and prayed for damages.

Defendant answered with a general denial and filed a motion for summary judgment under the provisions of Rule 166-A, Tex.R.Civ.P. As grounds for a summary judgment, defendant alleged that under the undisputed summary judgment proof no physician-patient relationship existed between the plaintiff and the doctor and therefore, as a matter of law, the doctor owed no duty and breached no duty owed to the plaintiff. Plaintiff did not reply to the motion. After a hearing the trial court entered an order reciting that no genuine issue of material fact was left to be determined by the court or the jury and that the defendant was entitled to judgment as a matter of law, from which judgment plaintiff duly perfected this appeal.

We affirm.

By a single point of error, the plaintiff contends that the court erred in granting the summary judgment, because the doctor owed him a legal duty to exercise ordinary care in making the examination and reporting his findings, irrespective of the fact that the doctor was employed and paid by the insurance company. In reply the defendant contends that, in the absence of a “physician-patient” relationship, no legal duty to the plaintiff arose and the trial court properly disposed of the matter by a summary judgment.

The facts are undisputed. According to the summary judgment proof, Thomas H. Johnston, Jr., was employed by A. F. Holman Boiler Works where he claimed to have sustained a compensable injury on August 13, 1974. He submitted a claim for workmen’s compensation benefits to Fireman’s Fund American Insurance Company, Holman’s insurer. In an effort to assess its liability upon the claim the insurance company retained the defendant, Dr. George W. Sibley, to examine the plaintiff for the purpose of determining (1) the nature and extent of any orthopedic disease or injury and (2) whether the plaintiff was suffering from any disability because of any such injuries. Dr. Sibley was retained solely at the request of Fireman’s Fund American Insurance Company and all fees for services rendered by him were paid by the insurance company. At the time he conducted the examination, Dr. Sibley was acting as a consultant for the insurance company and his report was prepared for use by the insurance company in evaluating the merits of the claim and for use in any proceedings that might be brought before the Industrial Accident Board. At no time did Dr. Sibley accept the plaintiff as his patient, nor does plaintiff contend that a physician-patient relationship existed. While Fireman’s Fund American Insurance Company is not a party to the suit, plaintiff is obviously pursuing a claim adverse to the interests of the insurance company. The record shows that the judicial report was addressed Fireman’s Fund American Insurance Company. How the plaintiff obtained a copy of the report is not disclosed. The plaintiff makes no contention that he suffered any bodily injury during the course of the physical examination or that the doctor made any oral representations to him with regard to the medical findings.

No Texas case has been found dealing with a physician’s duties and liabilities to a person examined pursuant to the physician’s contract with that person’s workmen’s compensation insurer.

We have found only two cases from other jurisdictions which we consider to be directly in point. These cases hold, under practically the same facts, that no cause of action for medical malpractice exists. Keene v. Wiggins, 69 Cal.App.3d 308, 138 Cal.Rptr. 3 (1977); Rogers v. Horvath, 65 Mich.App. 644, 237 N,W.2d 595 (1975).

It is a well established principle of law that a physician is liable for malpractice or negligence only where there is a physician-patient relationship as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill, and there is a breach of professional duty to the patient. Keene v. Wiggins, supra. See also Lotspeich v. Chance Voughl Aircraft, 369 S.W.2d 705 (Tex.Civ. App.—Dallas 1963, writ ref’d n.r.e.); Childs v. Weis, 440 S.W.2d 104 (Tex.Civ.App.—Dallas 1969, no writ). Whether any such duty arises when a physician examines a person not for the purpose of medical treatment is discussed in 10 A.L.R.3d 1071 (1966). The authorities reported there uniformly hold that in such cases no physician-patient relationship exists and thus the doctor’s only duty is to conduct the examination in a manner not to cause harm to the person being examined.

In medical malpractice cases, the duty owed by the physician arises out of the physician-patient relationship. 70 C.J.S. Physicians and Surgeons § 37. No such relationship was shown to exist in the present case. Defendant was employed by the insurance company for the purpose of evaluating the physical condition of the plaintiff and to make a report showing the extent of his disability. Plaintiff did not employ defendant, nor does he contend he sought medical advice or treatment from him. There is nothing to indicate any express agreement between the plaintiff and the doctor. Without question these facts are wholly insufficient to create a physician-patient relationship based on an express contract, nor is there anything to suggest that a contract arose by implication.

Plaintiff was in the position of pursuing a claim adverse to the insurance company. Plaintiff claimed that he was at least partially disabled and that such disability was permanent. The insurance company apparently did not agree and employed the defendant to make the examination for discovery purpose in order to resist his claim. The doctor, being in the employment of his adversary, owed him no duty except to avoid injuring him during the examination. Plaintiff knew that the examination was conducted on behalf of his adversary and to this extent the parties dealt at arms length.

In order to establish a cause of action, plaintiff had the burden of alleging and proving a set of facts showing he had a substantive right entitling him to maintain an action and that there was a violation or threatened violation of that right. 1 McDonald Texas Civil Practice sec. 202 at 167 (1965). Under the circumstances presented here, the only conceivable substantive right that the plaintiff may have had was a right to have the examination conducted in such a manner as not to injure him. He makes no claim that the doctor breached his duty of due care in this respect. Having no express or implied contract with the doctor, he had no substantive right to receive the doctor’s professional skill and ability in making the examination and issuing his report. The summary judgment proof offered by the defendant was sufficient, as a matter of law, to establish the non-existence of a substantive right. It follows that no genuine issue of fact existed as to one of the essential elements of the plaintiff’s claim against defendant. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

Accordingly, we hold that where a doctor, as here, conducts an examination of an injured employee solely for the purpose of evaluating the employee’s disability for the insurance carrier after a claim for workmen’s compensation has been filed, and the doctor neither offers nor intends to treat, care for or otherwise benefit the employee and does not injure him during the course of the examination, the doctor is not liable for negligence in a suit for medical malpractice. His duty to use a professional standard of care in making the examination and in preparing the report runs only to the party requesting it. Keene v. Wiggins, supra; Rogers v. Horvath, supra. The trial court properly disposed of the matter by summary judgment.

The judgment of the trial court is affirmed.

      . “The following is a medical report on the above named patient first seen by this examiner on February 13, 1975.

      CHIEF COMPLAINT: Pain in the low back. PRESENT ILLNESS: The patient states that on 8/13/74 while on the job for A. F. Holman Boiler Works helping unload a trailer load of boiler pipe by crane, the load of pipe swung against him hitting him in the abdomen and mashing him against a table. He states he was dazed but not knocked down. He was taken to Brookhaven Hospital in the company pickup truck where he was seen by Dr. Andy Harrell and was admitted to the hospital for 10 days. He has been treated by Dr. Key since that time. PAST HISTORY: The patient has been well and healthy. The patient states he has been on the job for 10 months. There is no history of previous difficulty with his back.
      PHYSICAL EXAMINATION: The patient is a healthy appearing, 27 year old, right handed obese, white male who comes in on two Canadian crutches. His posture is good. The heel and toe walk is satisfactory. The straight leg raising test are [sic] negative. The ankle and knee jerks are equal and active. There is a full range of motion in the low back. There is no measurable atrophy in the thigh or calf. There is no sensory or motor loss in the lower extremities.
      X-RAYS: Multiple x-ray views of the low back reveal fractures of the tips of the transverse processes of L-2, 3 and 4, healed and in good position.
      OPINION: I am unable to detect any orthopedic disease or disability in this man on physical examination or x-ray study this date. Isolated fractures of the transverse processes of the lumbar vertebrae are usually disabling as a result of the above mentioned accident. The patient may return to full duties without restrictions.”


author: DUNAGAN, Chief Justice.

text:
    Roy V. JACKSON, Appellant, v. John M. GRAY, Appellee.
    No. 1063.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 17, 1977.
    Rehearing Denied Dec. 8, 1977.

      Howard V. Tygrett, Jr., Tygrett & Florence, Harold J. Dollinger, Dallas, for appellant.
    James K. Peden, III, Strasburger & Price, Duncan L. Clore, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is a summary judgment case. The appellant, Roy V. Jackson, brought an action for tortious interference with contractual relations against the appellee, John M. Gray. This suit arose when Jackson was discharged from his position as Executive Vice President and Cashier of Dallas International Bank by Gray, who held the position of Chief Executive Officer and Chairman of the Board. Jackson had been employed at his position for a period of fourteen months when he was dismissed on June 27, 1975.

Jackson’s contention in his suit was that Gray did not have the authority to dismiss him, that such authority rests only in the board of directors.

Gray’s action in discharging Jackson was subsequently approved by the board of directors on July 15, 1975. Jackson’s only point of error is that the summary judgment was improperly granted. He argues that the record in the cause does not affirmatively show that the board of directors were aware of all the pertinent facts concerning Jackson’s dismissal which they purported to ratify. Jackson also asserts in his brief that at the very least he is entitled to his salary up to the time a valid dismissal takes place.

Article 342-409, Tex.Civ.Stat.Ann. (1943), states that “Each officer of the bank shall serve only during the pleasure of the board . . . .” The board need not state any reason for dismissing an officer. In fact, the board does not need to have any reason for dismissing an officer, since the statute allows an officer to be dismissed at the board’s pleasure.

The minutes of the board of directors’ meeting on July 15,1975, approving Gray's action in dismissing Roy Jackson, state that “[Tjhere followed a discussion of specifics on the dismissal.” A valid ratification requires knowledge by the principal of all the pertinent facts. Leonard v. Hare, 161 Tex. 28, 386 S.W.2d 619, 621 (1960). When ratification is shown by undisputed evidence, it may be determined as a matter of law. Gaston v. Copeland, 335 S.W.2d 406, 409 (Tex.Civ.App.-Amarillo 1960, writ ref’d n.r.e.); Indemnity Ins. Co. of North America v. Kelley, 76 S.W.2d 809, 811 (Tex. Civ.App.-Beaumont 1934, no writ).

We feel the minutes of this board meeting provide a sufficient showing of knowledge by the board of directors of the pertinent facts regarding the dismissal of Jackson. It is not necessary to enumerate these specifics in the minutes of the meeting. In light of Article 342-409, supra, the pertinent facts regarding the dismissal of Roy Jackson by John Gray are knowledge of the act of dismissal itself and the subsequent approval of the act by the board. The reasons, if any, behind the act are immaterial. We believe a valid ratification took place with knowledge of all the pertinent facts.

Even if a valid ratification was not made by the board of directors, their attempt at ratifying the dismissal of Jackson was tantamount to dismissing Jackson upon motion of a member of the board of directors. In effect, Gray merely received the board’s approval of the dismissal of Jackson and this board’s approval was per se a valid dismissal of Jackson. Therefore, the latest possible date upon which Jackson was dismissed was July 15, 1975. Jackson was given termination pay beyond July 15,1975, thus he has no basis for complaint that he was not compensated for the full period of his employment.

In addition to the minutes of the board of directors’ meeting, the summary judgment proof offered by Gray included an affidavit by Thomas Unis stating that the actions of Gray in dismissing Jackson were confirmed and ratified by the board of directors.

In opposition to the appellee’s motion for summary judgment, Jackson embodied in an affidavit various contentions and allegations, all of which did nothing to set forth any facts which are disputed in this case. The remainder of the record offers no evidence to raise a dispute concerning a material fact issue, other than the appellant’s pleadings, and these pleadings will not serve to raise a genuine issue of material fact. Keahey v. Dallas Teachers Credit Union, 374 S.W.2d 450, 452 (Tex.Civ.App.-Tyler 1964, no writ); Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App.-Dallas 1953, writ ref’d).

The well established rule is that a summary judgment should only be granted if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex.1969); Rule 166-A(c), Tex. R.Civ.P. The ultimate question is whether the summary judgment proof establishes that there is no genuine issue as to any material fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Rule 166-A(c), supra. As we view the record, there is nothing in the summary judgment proof raising a disputed issue of material fact. It therefore follows that the appellee was entitled to a summary judgment as a matter of law and appellant’s point of error is overruled.

The judgment of the trial court is affirmed.


author: STERNBERG, Justice.

text:
    James HELMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    Jack E. Farley, Public Defender, Mark Alan Posnansky, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

The appellant, James Helmes, was indicted by the Kenton County Grand Jury on December 19, 1975, for the shotgun murder of Melvin Sledge. KRS 507.020(l)(a). A three-day trial resulted in his conviction, and he was sentenced to serve 25 years in prison. Appellant was represented by retained counsel; however, on this appeal he is represented by the Office of the Public Defender.

The appellant argues that his conviction of murder denied him his right to due process under the Fourteenth Amendment to the Constitution of the United States since the Commonwealth failed to prove his sanity beyond a reasonable doubt. He contends that he “is not appealing on the facts of this case.” A thumbnail sketch of the facts, however, will be helpful in making a determination of the issue.

Appellant and three other men had been together for several hours, drinking beer and whiskey and riding around in an automobile. At about noon, or in the early afternoon on October 10, 1975, on the corner of 11th and Greenup Streets, in Coving-ton, Kentucky, appellant and the murder victim, Melvin Sledge, got into a fist fight. Appellant was severely beaten and stomped. He left the scene of the fight, but returned shortly thereafter with a loaded shotgun. The other three men had disbanded; however, appellant located his victim nearby inside Joe’s Meat Market, where he was a part-time employee. Woodson Burton, Jr., owner of the meat market, sought to ameliorate appellant’s conduct, but was promptly rebuffed by him. Appellant, from a distance of about 12 feet, then shot Sledge in the chest, causing his death. The appellant was forcibly disarmed and restrained until the police arrived.

On August 2, 1976, 22 days prior to his trial, appellant filed a notice of his intention to rely on the defense of mental disease or defect. KRS 504.050. Appellant contended that as a result of the severe beating he received, he was:

“(a) unconscious of his act; or
(b) his mind was so impaired and unsound that he did not have sufficient reason to know what he was doing; or
(c) that he did not know right from wrong.”

The following day, August 3, the trial judge ordered that appellant be taken to the Comprehensive Care Center, in Covington, for an examination and report, which was done.

At the trial Dr. Werner W. Anderson, who made the examination, testified that appellant suffered from a borderline character disorder, a dysfunction resulting in loss of sense of judgment or reality when subjected to stress and that at the time of the shooting it was no longer a question of right or wrong to the appellant. It was Dr. Anderson’s conclusion that at the time of the act appellant lacked the capacity to conform his conduct to the law. Dr. Robert W. Noelker, a clinical psychologist, corroborated the testimony of Dr. Anderson. It is urged that the testimony of Dr. Anderson and Dr. Noelker establishes that appellant was insane when measured by the standards delineated in Terry v. Commonwealth, Ky., 371 S.W.2d 862 (1963), and KRS 504.020(1) and (2).

Lay witnesses who had known appellant for many years testified that appellant, at the time of the shooting and immediately prior thereto, did not appear to be upset, excited or abnormal in his conversation, other than that he carried a loaded shotgun. They testified that appellant was calm, that he talked coherently, spoke in a low tone of voice, didn’t raise his voice or scream, and that he walked in his normal walk. Appellant contends that the Commonwealth attempted to prove his sanity only by the introduction of incompetent testimony of non-expert witnesses.

We need not reach the question of the character of the evidence as no objection was made at any time to any of the complained-of testimony. In Brown v. Commonwealth, Ky., 551 S.W.2d 557, 559 (1977), this court wrote:

“The victim of the crime knew the appellant and had identified him positively and convincingly. It is doubtful that Tandra’s evidence added anything, but even assuming that it did, and assuming for purposes of the argument that it should have been excluded, there can be no reversible error here for the simple reason that there was no objection to it in any form at any time during the trial proceeding.”

Further, appellant argues that by reason of the insufficiency of the proof, a directed verdict of “not guilty” by reason of insanity was in order. This contention is raised in this court for the first time. At the conclusion of the evidence for the Commonwealth, no motion was made for an instruction directing a verdict of acquittal. At the conclusion of all of the evidence for both the Commonwealth and the appellant, no motion was made for an instruction directing a verdict of acquittal. The question of sufficiency of evidence was not raised in a motion and grounds for a new trial. As a matter of fact, no motion for a new trial was filed. The issue was not presented to the lower court for its consideration; therefore, it was not preserved for appellate 'review. RCr 9.54.

Counsel for appellant goes to great lengths in an effort to challenge KRS 500.-070 and 504.020 and the line of Kentucky cases holding that the burden of proving insanity is on the accused. This identical question was presented to and answered by this court contrary to appellant’s contention in McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977).

The judgment is affirmed.

All concur.


author: PALMORE, Justice.

text:
    Phillip HUELSMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    Rehearing Denied Dec. 9, 1977.
    Jack Emory Farley, Public Defender, William M. Radigan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Mark Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

Phillip Huelsman and Newt Becknell were jointly indicted and tried for the murder of James Duncan, a service-station attendant. Each was found guilty and sentenced to life imprisonment under KRS 435.010, the statute in force on June 19, 1973, when the offense was committed. Only Huelsman appeals.

The same attorney was appointed to and did represent both defendants. Huelsman’s first contention is that this dual representation denied him the effective assistance of counsel and violated the rights guaranteed him by the 6th and 14th Amendments of the United States Constitution. He contends also that the admission into evidence of his confession without a preliminary evi-dentiary hearing to determine its voluntariness violated his constitutional right to due process of law.

At an early hour on June 19, 1973, Duncan was shot and killed while sitting asleep in his automobile at a service station. The resulting investigation led police officers to Huelsman, who signed a written confession on August 27, 1973. In summary, this confession recited the following facts:

On the night of June 18, 1973, while Huelsman and Becknell were at Becknell’s home, Becknell said something about going to get some money. Huelsman asked, “Where are you going to get it at?” Beck-nell responded, “Knock off a filling station.” Huelsman thought he was joking. Nevertheless, they drove to a service station in Grant County and discovered the attendant asleep in his automobile. Beck-nell pulled out a pistol and shot him. Hu-elsman, being until then unaware that Becknell had a gun, was “dumbfounded.” They both got out of the car, and Becknell went inside the service station looking for money but could not find any and made an unsuccessful attempt to pry open a vending machine. One of them (apparently Beck-nell) took the dead man’s wallet, and they drove off. While en route, they found that the wallet contained but $2.00. Becknell gave Huelsman $1.00 and threw the wallet out of the car. Huelsman threw the $1.00 bill Becknell had given him out the window.

On August 28, the day after Huelsman had signed this confession, the investigating officers arrested Becknell and informed him that Huelsman had made a statement. Becknell admitted his own complicity in the crime and signed a confession giving this version:

On the night of June 18, 1973, Becknell and Huelsman were together at Frisch’s restaurant in Florence, Kentucky. When the restaurant closed, they went to Beck-nell’s home in an automobile that belonged to Huelsman’s girl-friend. Huelsman was drinking, and Becknell was “downing soap-ers.” At about a quarter of one Huelsman started “talking about the money. I was strung out. He said he knew I robbed people before. He asked me if I wanted to make any money. I told him I could use some. I went inside my Mom’s bedroom and got the gun out. It was a 22. It belonged to my Stepdad ... I told him I was not going to be the one to shoot anybody, that he would have to be the one with the gun. He said O.K.” When they left Becknell’s home Huelsman was driving, but later on he turned the wheel over to Becknell, who drove into the service station where Duncan was sitting or lying in the driver’s seat of his automobile, giving the appearance of having “passed out.” Beck-nell “pulled up beside his car and Phil shot . I went in and tried to break into a cigarette machine. After I done that I saw Phil bent over the old man and then I went back and got in the car.”

Though it is not in the record, it appears from the testimony that an examining trial for Becknell was held in the county court on August 30, 1973, and that the attorney who later represented both defendants in the circuit court was present, representing Huelsman. Whether he was representing Becknell also is not clear.

The indictment was returned on October 8, 1973. A “memorandum of arraignment and plea” indicates that an arraignment was held on October 9,1973, and that court-appointed counsel, Hon. William Knapp, entered a plea of not guilty. The trial took place on October 17-18, 1973.

At some time prior to the trial date Beck-nell chose to plead guilty, so that the posture of the case when the voir dire began was that Becknell was pleading guilty and Huelsman was pleading not guilty. However, as the questioning of prospective jurors progressed Mr. Knapp advised the court that Becknell was changing his plea from guilty to not guilty.

In the course of proving its case the Commonwealth, after having produced other supporting evidence, had Huelsman’s confession read to the jury and filed as an exhibit. For some reason, however, although Becknell’s confession was referred to in the testimony and appears among the' exhibits at the end of the transcript, there is no indication that it was ever read to the jury or introduced as an exhibit. After the Commonwealth rested its case, Becknell and then Huelsman took the witness stand and each testified in his own behalf.

The story told by Huelsman at the trial substantially coincided with the confession he had signed on August 27, 1973, but with these differences: whereas in the confession he had quoted Becknell as having suggested that they “knock off” a filling station, he testified that Becknell “said something about getting some drugs at a filling station and the way that I took it, was that he was getting drugs at this filling station;” and though reiterating that he was “all shook up and dumbfounded because he shot that guy,” Huelsman admitted under cross-examination that when he and Beck-nell left Becknell’s house on the night of June 18, 1973, he knew Becknell had “talked about” robbing a service station and knew also that Becknell “had the gun.”

Becknell’s recitation of the events in question differed radically from what he had said in the confession which, as we have said, appears somewhat apocryphally with the transcript of evidence. The major substance of his testimony agrees with that given by Huelsman. According to Becknell, “I said to him something like let’s hit a Sunoco station. The money wasn’t the only thing we went for because . . . Mr. Duncan dealt in narcotics and I knew that . I was the one that shot Mr. Duncan. I plead guilty to that but I believe if I hadn’t had the drug problem I wouldn’t have done it.” On cross-examination the whole of Huelsman’s confession (which, of course, had already been introduced by a witness for the Commonwealth) was read to him and he was asked whether several of the statements in it were true. Some of it he confirmed, and as to the remainder he said he did not remember. He said that he had been to this particular service station several times before the shooting but did not know whether Huelsman had ever been there. When asked why he killed Duncan he replied that he was afraid Duncan would recognize him and tell the person who was supplying the drugs for Duncan to sell.

With respect to the failure of the trial court to conduct an in camera hearing to determine the voluntariness of Huels-man’s confession, we think the dispositive answer is that counsel did not ask for it. Moreover, the testimony subsequently given' by Huelsman made it abundantly clear that the confession was made freely and without coercion or pressure of any kind, and after Huelsman had been carefully advised of his right to remain silent. We find no violation of his constitutional protections.

In previous opinions beginning with Maye v. Commonwealth, Ky., 386 S.W.2d 731 (1965), we have sought to warn against the danger of conflicting interests when two or more defendants in a criminal trial are represented by the same counsel. See Maynard v. Commonwealth, Ky., 507 S.W.2d 143 (1974). Although counsel did not bring the question to the attention of the trial court, as had been done in Maynard, we might very well be disposed to reverse this conviction were it not so obvious that there was no prejudice, at least to Huelsman.

As matters stood when the voir dire commenced, Huelsman had given the police a written statement to the effect that Beck-nell shot the murder victim and Becknell had given them a written statement that Huelsman did the shooting. In that posture, it was in, the interest of each defendant to prove the other a liar. That was an unmistakable conflict. Both statements having been made before counsel was appointed for either defendant, if counsel was aware of it he should have declined to serve for both and so advised the trial court. The trial court, on the other hand, ought not to have appointed the same counsel for both defendants in the first place. The necessity of keeping two defenses in harmony unavoidably restricts the lawyer’s freedom to advise either defendant to cut loose and go his own way. He cannot conscientiously advise one client to save his own neck at the expense of the other client’s neck. So they are handcuffed, to sink or swim together, whereas if they had separate counsel each could chart a separate course and steer it to suit his own vision of the road to salvation.

Be all that as it may, when we reflect on the circumstances as they unfolded in this case the unspoken fact that stands out most prominently is that Huelsman actually benefited from the dual representation. Before counsel was appointed for both men Becknell had made a written statement accusing Huelsman of the shooting. Afterward, he admitted having done it himself. In his testimony he said nothing that did not substantially coincide with what Huels-man had to say in his own defense. Though Huelsman’s appellate counsel cites Beck-nell’s testimony that he had suggested “knocking off” a service station as undermining Huelsman’s defense that he did not intend the consequences of the venture, it can scarcely be overlooked that these were the very words used by Huelsman himself in making a written statement to the investigating officers before Becknell ever said anything at all. Beyond any reasonable doubt, there simply was not any prejudice to Huelsman by reason of his counsel’s representing Becknell also.

The judgment is affirmed.

All concur.

      . KRS 435.010 was superseded by the Kentucky Penal Code, effective January 1, 1975.

      . In his testimony at the trial Becknell defined this substance as “a pain pill and a downer to knock you out and it makes you feel drunk.” He explained that he had been a drug addict for some time.

      . The statement in Huelsman’s reply brief to the effect that it was read to the jury during cross-examination of Becknell appears to be in error. The transcript indicates that the statement read by the prosecuting attorney was Huelsman’s confession, as later mentioned in this opinion.


author: STEPHENSON, Justice.

text:
    Larry Wade NEWTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    Prank W. Heft, Jr., Asst. Public Defender, Louisville, Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appel-lee.
   STEPHENSON, Justice.

Larry Wade Newton was indicted and tried for the offense of first-degree robbery, KRS 515.020, and as a persistent felony offender in the first degree, KRS 532.-080(3).

The jury convicted Newton of first-degree robbery and fixed his punishment at 20 years’ imprisonment. In the second stage of the trial, he was convicted of being a persistent felony offender in the first degree and was sentenced to life imprisonment.

The sole question presented by Newton on this appeal is whether the Commonwealth proved the essential elements of conviction required by KRS 532.080.

According to the record, Newton was first convicted for the offense of grand larceny in January 1974 and sentenced to imprisonment of one year. Next, on January 31, 1975, pursuant to a plea of guilty, Newton was sentenced to five years’ imprisonment on one count of grand larceny and to two years’ imprisonment on a second count of grand larceny. Both offenses were committed on November 13, 1974, insofar as we can determine from the record.

The principal offense of first-degree robbery for which Newton stands convicted here was committed on September 15, 1976.

Newton asserts that the Commonwealth did not prove that he had been discharged from probation or parole within five years of the date he committed the principal offense of first-degree robbery.

KRS 532.080(3) provides:

“A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
“(a) That a sentence to a term of imprisonment of one year or more of a sentence to death was imposed therefor; and
“(b) That the offender was over the age of eighteen (18) years at the time the offense was committed and was discharged from probation or parole within five (5) years of the date of commission of the felony for which he was last convicted.”

Here there is undisputed proof of the two previous felony convictions, that Newton was sentenced to imprisonment for one year or more on each conviction, and that he was over the age of eighteen .at the time the offense was committed. There is no proof that Newton was discharged from probation or parole for the felonies for which he was last convicted. His last conviction resulted from felonies committed November 13, 1974; so if he had, in fact, been discharged from probation or parole, it is within the five-year period provided for in the statute. We are of the opinion proof of this fact is an essential element of the offense of being a persistent felony offender. The statute is clear, concise, and not ambiguous. Absent proof of an essential element of the offense, the conviction cannot stand.

In Adams v. Commonwealth, Ky., 551 S.W.2d 561 (1977), we held that failure to prove the age of the defendant as mandated by the statute required reversal for the reason that proof of the defendant’s age was an essential element of the offense. We regard each element of the offense as prescribed by the General Assembly equally essential to support a conviction. The Commonwealth argues that the commission of three successive felonies within a two-year period represents a classic example of the situation the persistent felony statute is designed to control.

We agree that philosophically the statute is designed to control persistent felony offenders, but on such terms and conditions as prescribed by the General Assembly. It may be, as stated by the Commonwealth, it is probable that Newton has not been free from supervision by the Department of Corrections since his first conviction. If this be true, the Commonwealth will be unable to prove this element of the offense on a new trial.

This situation presents an anomaly; however, the 1976 Extraordinary Session amended KRS 532.080 to provide:

“(3) A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
“(a) That a sentence to a term of imprisonment of one (1) year or more or a sentence to death was imposed therefor; and
“(b) That the offender was over the age of eighteen (18) years at the time the offense was committed; and “(c) That the offender:
“1. Completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted; or
“2. Was on probation or parole from any of the previous felony convictions at the time of commission of the felony for which he now stands convicted; or
“3. Was discharged from probation or parole on any of the previous felony convictions within five (5) years prior to the date of commission of the felony for which he now stands convicted.”

With this amendment in effect, we would not be faced with the present question. However, we are bound by the statute in effect at the time.

We are confident the failure to instruct fully on persistent felony offense in the second degree will be remedied at the new trial. Thus we will not attempt to unravel the question of whether this issue was preserved for appellate review.

The conviction for being a persistent felony offender is reversed for a new trial consistent with this opinion. Should the Commonwealth fail to prove the offense, it is directed that appellant be sentenced on the conviction of the principal offense of first-degree robbery.

All concur.


author: LUKOWSKY, Justice.

text:
    Thomas Lee BOWLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    Joseph J. Grace and James U. Glanville, Paducah, for appellant.
    Robert Stephens, Atty. Gen., Sam E. Isaacs, II, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Bowler was convicted of murder and sentenced to twenty years in the state penitentiary by the Graves Circuit Court. He prosecutes this appeal on five assignments of error. Two of these assignments are dis-positive of the appeal and require this court to reverse the conviction and to remand the case for a new trial.

Sometime between noon and 1:00 p.m. on Friday, May 7, 1976, Bowler’s wife was stabbed to death in their trailer home. There were no “eyeball” witnesses. The Commonwealth’s case was wholly circumstantial. The defense was alibi.

The prosecution’s theory was that Bowler stabbed his wife in the bathroom, then dragged her into the hallway by the back door, and ransacked the house and arranged the victim’s clothes to give the appearance of a murder-robbery-rape. The autopsy produced evidence that the victim had intercourse within the 48 hours preceding death. Bowler testified that they had not had intercourse for five days prior to her death.

The evidence tending to connect Bowler to the crime is not overwhelming. The motive propounded stemmed from marital discord, the recent acquisition of accidental death insurance on the victim, and the joint ownership of cash and real property. The opportunity consisted mainly of the Commonwealth’s impeachment of the alibi witnesses and an attempt to place Bowler’s car at the scene near the time of death. The means, the murder weapon, was not found.

Bowler claimed that he found his wife dead at approximately 3:40 p.m. His defense was an alibi that placed him far from the scene of the crime between approximately 9:00 a.m. and 3:40 p.m. This facet of the case presented crucial issues of credibility because both the witnesses for the Commonwealth and Bowler gave conflicting testimony and prior inconsistent statements. On the whole the record presents a close question of innocence or guilt which the jury resolved against the accused.

I.

As part of its case in chief the Commonwealth called Bowler’s teenage stepdaughter as a witness. Questions were directed to her concerning the family situation and the relationship between herself, the deceased and Bowler. On redirect examination the prosecutor asked her this question:

“At any time during your stay there with your stepfather — now you listen to this very carefully, and answer it very truthfully, I don’t think I’ve ever asked you this at all, but you can tell me later if I have — did your stepfather ever try to molest you?”

At this point, and prior to her answering, defense counsel objected and moved the court to set aside the swearing of the jury and to declare a mistrial. The objection was sustained but the motion was denied. The court also refused defense counsel’s request for an admonition to the jury upon the ground that to do so would only emphasize the question. Apparently the witness cried after this question was put to her and was thereafter released without answering. The prosecutor did not make an avowal nor did he attempt to prove the allegation insinuated in the question. It was readily apparent from the question itself that the prosecutor had no idea what the response would be.

Bowler claims that this constituted prejudicial error which deprived him of a fair and impartial trial. The circumstances in which this question was put, the nature of Commonwealth’s case and the total complexion of the evidence bear upon the resolution of this issue. This girl was being questioned concerning private family matters. It was established that she and Bowler had difficulty getting along, that he separated from the victim several times prior to the murder, and that he had filed for divorce. Some of these separations were due to differences of opinion between Bowler and his wife concerning the proper upbringing and standard of conduct of this young lady. In these matters Bowler was in a particularly vulnerable position. It was the prosecutor’s goal to expose all the intrafamily strife through the testimony of this girl and use it to establish a motive. Without regard for the delicate framework within which he was working, the Commonwealth Attorney asked on direct examination for the first time a question concerning a highly prejudicial factual predicate without regard for the answer.

Ordinarily the mere asking of an isolated improper question is not grounds for reversal. Vontrees v. Commonwealth, 291 Ky. 583, 165 S.W.2d 145 (1942); Warman v. Commonwealth, 207 Ky. 738, 270 S.W. 48 (1925). However, these cases can not be read to establish an ironclad rule. Each determination must be made on the basis of the peculiar facts and circumstances of the particular case. This court has repeatedly held that where the Commonwealth Attorney persists in asking improper and prejudicial questions, for the purpose of getting before the jury evidence which the law does not permit them to hear, a judgment of conviction will be reversed. Stewart v. Commonwealth, 185 Ky. 34, 213 S.W. 185 (1919); see, Louisville & N. R. Co. v. Rowland’s Adm’r., 227 Ky. 841, 14 S.W.2d 174 (1929); Louisville & N. R. Co. v. Payne, 133 Ky. 539, 118 S.W. 352 (1909); Cargill v. Commonwealth, Ky., 13 S.W. 916 (1890).

It is true that in this case, contrary to those cited above, there was no persistent improper questioning. However, there was a reckless disregard of the effect of the highly inflammatory nature of the question in the event of a negative answer, which, as far as the prosecutor knew, was as likely as a positive response. The Commonwealth contends that the question was relevant to the issue of motive. This is true only if a positive response is expected. Here, the prosecutor had no idea of the answer to the question and asked it in utter disregard of the highly prejudicial effect it might have.

The principle behind the rule of the eases cited above is that such action may so impress the minds of the jury as to amount to prejudicial error. Louisville & N. R. Co. v. Rowland’s Adm’r., supra, 14 S.W.2d at 179. This principle applies regardless of the number of improper questions. See, Coates v. Commonwealth, Ky., 469 S.W.2d 346 (1971) (one question plus comment in closing argument); Woodford v. Commonwealth, Ky., 376 S.W.2d 526 (1964) (seven questions); Rollyson v. Commonwealth, Ky., 320 S.W.2d 800 (1959) (two improper questions); Rowe v. Commonwealth, Ky., 269 S.W.2d 247 (1954) (three questions). These cases set forth the basic rule of fairness that the prosecution cannot deliberately inject into the case, via a question, material prejudicial to the rights of the defendant without some reasonable basis to believe there will be an affirmative answer. In this case, as in Rowe, Woodford, and Coates, supra, the prosecutor made no effort whatsoever to prove his insinuation. He was on a fishing expedition and came up empty.

This approach is not inconsistent with the application of Rowe, and Woodford in Alexander v. Commonwealth, Ky., 463 S.W.2d 334 (1971). In Alexander, the improper question was asked on cross examination, the defense objection was sustained, and the court admonished the jury to disregard the question. The court also found that the nature of the question did not introduce an element likely to inflame or to incite prejudice against the defendant and thus be likely to override the efficacy of an admonition. After viewing the question against the background of all the evidence in the case, the court was of the opinion that the prospect of its having produced substantial prejudice was too remote to justify reversal. The delicate balance of the evidence in this case and the inflammatory nature of this question compel us to hold that substantial prejudice occurred.

This question reflected a callous disregard by the Commonwealth of the rights of the accused. Whether an admonition by the court to the jury would sufficiently erase the false impression left by the question is not decided. However, no such admonition was given nor did the court reprimand the Commonwealth Attorney before the jury as an expression of its official disgust for such a highhanded tactic. The jury was left with no guidance on this matter and could have considered this aspersion on the character of the accused in its deliberations concerning the delicate issues of this case.

II.

One of the issues to be resolved by the jury was whether Bowler’s Pinto station wagon was at the scene of the murder near the time of death. The color of the vehicle seen at the trailer that day was important. There was testimony that a small gold station wagon was in Bowler’s driveway about 1:15 p.m. Conflicting testimony from various witnesses as to the color of the car was elicited. He claimed that it was green in color and others said that it was greenish gold, changing appearance with the slant of the sun. At the conclusion of the closing arguments and as the jury was retiring to deliberate, the following exchange took place in the presence of the jury.

JUROR:
Would it be proper for us to see the Pinto in question from the window?
THE COURT:
I don’t know whether it’s still in existence or not. Is it, Mr. Grace?
MR. GRACE:
What’s that?
THE COURT:
One of the jurors asked if it would be possible for them to see the Pinto station wagon in question. Do you have it here so that they might see it?
MR. GRACE:
No, of course we don’t have it here.
MR. REED:
They don’t want you to see it.
MR. GRACE:
Now, Mr. Reed, you know that’s not right. The Commonwealth could have subpoenaed the car if they wanted to see it.
THE COURT:
Yes, or you could have.
MR. REED:
Defense could have brought it without it being subpoenaed.
MR. GRACE:
I don’t even know whether the man’s still got the car or not ... he may have sold it.
MR. REED:
Or got rid of it.
MR. GRACE:
Now, why would he do that? I want to make a motion. I want to make a motion because of that exchange there. I want to make a motion that the swearing of this jury be set aside and that they be discharged and a mistrial declared.
THE COURT:
You are overruled.
MR. GRACE:
All right, sir, but I want that in the record.

Such irregular conduct on the part of the Commonwealth Attorney can not be tolerated. This overzealous prosecutor intentionally engaged in improper argument in the presence of the jury after the case was submitted to them. This court has defined the role of the prosecutor and the duty of his position. Bailey v. Commonwealth, 193 Ky. 687, 237 S.W. 415 (1922). He may strike hard blows but he may not strike foul ones. He should constantly be mindful and protective of the rights of the accused, whether guilty or innocent. He may not testify. He is limited to fair argument on matters in the record and legitimate deductions therefrom. Martin v. Commonwealth, 255 Ky. 529, 75 S.W.2d 13 (1934); e.g., Baker v. Commonwealth, 184 Ky. 207, 211 S.W. 566 (1919).

In this verbal affray the prosecutor accused the defense of deliberately concealing evidence. This charge against defense counsel and defendant is totally without support in the record. It is an unfounded and unfair inference. If this charge had been made in closing argument, it would have been improper. Martin v. Commonwealth, supra; see, Johnson v. Commonwealth, Ky., 302 S.W.2d 585 (1957). State v. Swing, Mo., 391 S.W.2d 262 (1965); State v. Smith, 25 Ala.App. 183, 142 So. 779 (1965). When made after submission as a parting torpedo, such an accusation is reprehensible. Even so, the trial court denied a defense motion for a mistrial and gave no admonition to the jury to disregard these accusations. In fact, its comments seemed to condone this highly irregular conduct on the part of the prosecutor.

The doctrine of harmless error is not so elastic that it will encompass the errors committed here. “When entering the temple of justice to answer for the commission of the alleged offense he was entitled to the protection of the law, and this means a fair and an impartial trial.” Cargill v. Commonwealth, supra, 13 S.W. at 917.

The judgment is reversed and the cause is remanded for a new trial.

All concur.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Petitioner, v. Lohren F. MARTIN, Jr., Respondent.
    Supreme Court of Kentucky.
    Oct. 28, 1977.
    Leslie G. Whitmer, Director, Kentucky Bar Association, Frankfort, for petitioner.
    Lohren F. Martin, Jr., pro se.
   PER CURIAM.

On September 23, 1976, pursuant to the provisions of RAP 3.200, a written charge was filed against the respondent in this court wherein it is alleged that he engaged in unprofessional and unethical conduct. This charge is fully denied by the respondent in his answer filed October 18, 1976. The trial committee of the Kentucky Bar Association, on February 4,1977, conducted an evidentiary hearing, of which respondent was duly notified but did not appear. The testimony was recorded, transcribed and filed in this court on July 26, 1977.

The testimony discloses that Henry Gir-dler, an uneducated person, had been arrested in Somerset, Kentucky, for the alleged offense of disturbing the peace; that he was held incommunicado from the time of his arrest at 6:45 until his trial at 9:40; and that when the case came on for trial the charge was dismissed. Girdler regularly takes medication for a heart condition, but was refused permission to take his medicine while being held under arrest.

At the hearing Girdler and his daughter were the only two witnesses to testify. Girdler testified that on or about November 17, 1973, he conferred with the Honorable Lester Burns, an attorney-at-law of this commonwealth, relative to his arrest, with the intention of bringing a civil action to recover damages from the City of Somerset for his mistreatment. After such conference, Attorney Burns accepted the employment and turned the case over to respondent. Thereafter, Girdler conferred with respondent relative to the prosecution of his action. At this conference Girdler gave respondent $50 in cash for the filing fee and turned over to him a brown envelope in which had been placed his personal belongings at the time of his arrest and returned to him when he was dismissed. About six months later Girdler talked to respondent on the telephone relative to the proceeding and was told that the lawsuit had been filed in the federal court in London, Kentucky. About three months later Girdler again called respondent on the telephone, but was advised by someone in his office that he was in court. Two or three months later Girdler again called respondent on the telephone and was told by him that the federal judge in London had died, which had caused a delay. Girdler visited the office of the clerk of the federal court in London and was unable to find any record that his lawsuit had been filed. Thereupon, Gir-dler’s daughter called respondent’s office and was told that he was not there, but upon being advised that she and her father were in London, Kentucky, and that they had learned that no such lawsuit had been filed, respondent came on the phone and told Girdler that the suit had been filed in the federal court in Lexington, Kentucky. A couple of weeks later Girdler telephoned the office of the clerk of the federal court in Lexington, but was advised by that office that no such suit had been filed. Again, Girdler called the respondent and told him of his newest discovery, to which respondent said, “ * * * I haven’t got time to fool with the case, * * * I’m sending you your $50.00 back.” On May 5, 1976, respondent returned the $50 which he had received from Girdler, and on May 18, 1976, Girdler wrote a letter to respondent discharging him in the matter and demanding the return of his personal property. Thereafter, Girdler conferred with several other attorneys, but in each instance he was advised that it was too late to bring a lawsuit.

Lou Ethel Trostel, daughter of Henry Girdler, testified that she accompanied her father to Mr. Burns’ office for his initial conference, and she reaffirmed her father’s testimony about what took place at that time. She further testified that she made many telephone calls to respondent’s office on behalf of her father, but on each occasion, other than one, she was told that the suit was being processed. On the one occasion she said that when she called respondent’s office, she was told that he was not in. However, when she advised the person to whom she was talking that she and her father were in London at that time and had learned that the suit had not been filed, the respondent came on the line saying that the suit had been filed in Lexington.

On February 17,1977, a copy of the transcript of testimony was mailed to respondent and’ he was directed to present any rebuttal evidence he may have on or before March 5, 1977. The record fails to disclose any response. As a matter of fact, the record discloses that respondent’s only response in any manner was his answer filed on October 18, 1976.

On May 17, 1977, after expressing as its opinion that there is grave doubt that Gir-dler had a worthwhile cause of action against the City of Somerset, the trial committee recommended that respondent be given a private reprimand. On July 16, 1977, the Board of Governors of the Kentucky Bar Association unanimously found the respondent guilty of unprofessional and unethical conduct. Ten of the thirteen members of the Board recommended that respondent’s punishment be a two-year suspension period and that he be required to pay the costs of the action.

The findings and recommendations of the Board of Governors were filed in the office of the clerk of this court on July 26, 1977, and on the same day an attested copy thereof, together with a rule for the respondent to show cause, if any he has or can, why he should not be found guilty of unprofessional conduct and disciplined therefor, was issued from the clerk’s office. The return of the Sheriff of Laurel County, Kentucky, discloses that both the attested copy of the said findings and recommendations of the Board and the rule to show cause were served on respondent on August 22, 1977. The record reflects that no response has as yet been made.

The respondent is found guilty of unprofessional conduct and is suspended from the practice of law in this commonwealth for a period of two years and ordered to pay the costs of these proceedings.

PALMORE, C. J., and REED, STEPHENSON, CLAYTON and STERNBERG, JJ., concur.

JONES and LUKOWSKY, JJ., not sitting.


author: JONES, Acting Chief Justice.

text:
    James Edward NELSON, Administrator of the Estate of Douglas R. Nelson, Movant, v. Paul E. MARTIN, Respondent.
    Supreme Court of Kentucky.
    Nov. 18, 1977.
    Creech, Hogg & Howell, Ashland, for movant.
    David 0. Welch, Ashland, Charles M. Daniels, Greenup, for respondent.
   OPINION AND ORDER

JONES, Acting Chief Justice.

We are of the opinion that discretionary review of this case 552 S.W.2d 668 (Ky.App.1977) was improvidently granted.

The order granting discretionary review is vacated and the case is remanded to the Court of Appeals for the issuance of its mandate.

All concur except STERNBERG, J., who did not sit.


author: GANT, Judge.

text:
    William Jacob RELFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 6, 1977.
    Rehearing Denied July 8, 1977.
    Rehearing and Rehearing En Banc Denied July 26, 1977.
    Discretionary Review Granted Oct. 24, 1977.

      Jack Emory Farley, Public Defender, Com. of Ky., Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, Patrick H. Molloy, Com. Atty., 22nd Judicial Circuit, Lexington, for appellee.
    Before GANT, LESTER and PARK, JJ.
   GANT, Judge.

On February 3, 1976, two detectives of the Lexington Metro Police Department observed a vehicle belonging to the Appellant which was being driven by one Eva Jean Adams on the streets of Lexington. The detectives recognized the driver as a person who they knew was wanted in connection with an escape from a juvenile detention facility and further recognized the Appellant who was on the sidewalk trying to get the driver’s attention as she drove by and recognized the passenger in this vehicle. Without losing sight of the vehicle they began to follow it and after pulling up behind the vehicle they saw the Appellant approach the vehicle, apparently remove something from his waist or shirt and hand it to the driver and then saw the passenger appear to place something under the seat of the car. The two detectives approached the car, required the passenger to get out of the car and, based upon their observation and according to their testimony, in order to determine whether a weapon had been placed under the seat by the passenger, searched under the passenger’s seat with him standing just outside the vehicle and found there a brown envelope. This envelope was a standard U. S. Government “window” envelope containing a Social Security check made to one Beulah Thomas, which was seen without opening the envelope.

At this point, one of the detectives asked the driver, whom they knew was Eva Jean Adams, “What's your name?” She replied that she was Beulah Thomas and at this time the detectives placed Eva Jean Adams, the passenger and the Appellant all under arrest and charged them with Criminal Possession of a Forged Instrument.

At the trial of this action, Eva Jean Adams testified that the Appellant and the passenger had approached her in a restaurant shortly before the arrest and solicited her aid in cashing a Government check and that after first refusing to do so she had indicated to them a certain location near where the arrest took place at which she felt they could cash the check. The Appellant testified that the first time he saw the check was at the time of his arrest and the passenger testified that the first time he saw the check was when Eva Jean pitched it to him as the police approached the vehicle and that he had, in fact, stuffed it under the seat of the Appellant’s vehicle.

Appellant cites five errors committed by the trial court as the basis for his argument for reversal of this cause.

The first error urged by the Appellant is that the search of the vehicle in question constituted an unreasonable search and seizure within the limitations prescribed by the Fourth Amendment of the Constitution of the United States. In connection with this alleged error, it should be first noted that no objection was made to the introduction of the evidence herein, nor was any suppression hearing held prior to trial or during trial outside the hearing of the jury. This type of conduct makes it extremely hard for an Appellate Court to rule upon whether probable cause existed, and whether the search was of the type covered under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or any other applicable principle laid down by the Supreme Court of the United States or by the courts of this jurisdiction. Indeed, we know of no rule in this jurisdiction which would require the prosecution to introduce all the evidence concerning the circumstances of the search when those circumstances are not put at issue by an objection and thus are removed from consideration by the jury. In the case of Bays v. Commonwealth, Ky., 486 S.W.2d 706 (1972), the court held that introduction of the evidence concerning a search was not necessary when the court had previously determined as a matter of law that the evidence was admissible. The failure to object would also remove that issue from the jury and there would be no necessity for the Commonwealth to introduce all the “circumstances of the search.”

The position of this Court is best stated in the case of Sykes v. U. S., 373 F.2d 607, 612 (5th Cir. 1966) cert. denied 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138 (1967). In that case the court stated as follows:

Imagination in re-living the trial is here not sufficient, but must be accompanied by speculation as to what would have appeared had the claim of error been considered. Speculation wastes time and bears ephemeral fruit. For this reason this Court has held that there is no “plain error” where, irrespective of the substan-tiality of the claimed error, the record does not present the question in enough detail. (Citing eases).
The present case classically illustrates the soundness of this rule. Whether or not there was error was not visible because all of the circumstances of the arrest were not before the court. That which is not visible cannot be “plain.” We are not equipped for divination. Only the proper objection to the offered evidence would have allowed a clear picture in which we might have found error. “The prosecution therefore was not challenged about the arrest, showed only such facts as led to the search, was under no necessity of offering evidence in justification and explanation of the entry, and in effect was lulled into an assumed security which the defense would now make false. We, of course, do not know from this record what the government would or could have proved by way of explanation and justification. We do feel that, under the circumstances of this case, the defense is not now in a position to complain by afterthought.” Robinson v. United States, 8 Cir. 1964, 327 F.2d 618, 623.

The second and third errors as-. cribed to the lower court were the failure of the lower court to instruct the jury that Eva Jean Adams was an accomplice as a matter of law and that her testimony was not corroborated sufficiently to justify conviction on the charged offense. It is well established under Kentucky law that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. RCr 9.62; Commonwealth v. Bowling, Ky., 497 S.W.2d 720 (1973). However, as herein-above set out, there was considerable corroborative evidence. The detectives testified that Relford handed something to the occupants of the car; that the passenger moved his hand down as if to reach under the seat; that the car was owned by the Appellant, and the forged instrument was found under the seat. The major disadvantage of failure to give an accomplice instruction would occur in those cases in which the testimony was not corroborated, but the testimony of the accomplice was corroborated in such a manner that the problem certainly did not occur in this case. Additionally, there was a failure by the Appellant to comply with RCr 9.54(2), as amended March 1, 1974, which states:

No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes an objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.

In this case there was no tender of an accomplice instruction and, in fact, the Appellant indicated that he thoroughly approved the instructions tendered by the court.

Appellant also urges as error the failure of the court to give an instruction on Possession of a Forged Instrument in the Third Degree. All the evidence in this case was that the document was a Social Security check and the Third-Degree instruction would not have been proper even had it been given. There was no contention by the Appellant that it was not an instrument described in Ky.Rev.Stat. 516.060; he merely denied the commission of the offense at all.

The last ground contended by the Appellant is that the failure of counsel in connection with the preceding errors (i. e., failure to contest the search and seizure and to object to the instructions) has deprived Appellant of adequate representation of counsel. Again, as an Appellate Court, we find that from the record itself we cannot rule that there was inadequate representation. Trial counsel for the Appellant had available to him all the information concerning the search and had attended the trial. It may well have been that the knowledge gained by him from his client and from his interviews with the witnesses convinced him that objection to the search would have been fruitless and would only have resulted in lengthening the trial. We certainly cannot, as a matter of hindsight, rule that his failure to insist on an accomplice instruction was an error in view of the corroborating testimony presented here. There is no requirement that any counsel make useless objections or ask for instructions needlessly. It has been said that right to counsel does not mean errorless counsel or counsel adjudged ineffective by hindsight, but counsel reasonably likely to render, and rendering, reasonably effective assistance. U. S. ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976). See also Ramsey v. Commonwealth, Ky., 399 S.W.2d 473 (1966) cert. den. 385 U.S. 865, 87 S.Ct. 126, 17 L.Ed.2d 93 (1966).

For the reasons above stated, the judgment is affirmed.

All concur.


author: WHITE, Judge.

text:
    Elmer L. BLAIR, Appellant, v. GENERAL ELECTRIC COMPANY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    July 8, 1977.
    Rehearing Denied Aug. 12, 1977.
    Discretionary Review Granted Nov. 14, 1977.

      W. David Klingman, Frockt & Klingman, Louisville, for appellant.
    Charles S. Cassis, Hal Nance Bogard, Brown, Todd & Heyburn, Louisville, for appellee, General Electric Co.
    William L. Huffman, Director of Workmen’s Compensation Board, Dept, of Labor, Frankfort, for appellees.
    Before WHITE, COOPER and LESTER, JJ.
   WHITE, Judge.

The issue in this Workmen’s Compensation case is whether the appellant is limited to the “price tag” benefits as set out under KRS 342.730(l)(c)16. or should be entitled to an award under KRS 342.730(l)(c)27. commensurate with his occupational disability. The Board awarded appellant the price tag benefits and the circuit court affirmed. On this appeal, it is contended that under the findings of fact made by the Board, it was error not to award benefits under KRS 342.730(l)(c)27.

The evidence indicated that on December 8, 1973, the claimant, age 42, sustained an injury to his right eye as the result of a work-related accident. The claimant has held a succession of jobs with General Electric until he reached his present job classification of die setter. He has accumulated considerable seniority. As a die setter, claimant Blair is required to load and unload dies on the presses, transport them to the die shop, set up welders, change electrodes and put steel into the presses. He must also drive a forklift and use wrenches to take the dies out and put them back in.

Subsequent to the injury, he returned to work in his same job classification. Blair’s supervisor testified that he is somewhat slower, but that he does all the jobs he is supposed to do. His supervisor is satisfied with his performance.

As a result of the accident, Blair was operated on three times. Legally, he is blind in his right eye. Medical testimony indicates that the claimant's depth perception has been greatly altered and impaired. The evidence shows that the injured eye is sensitive to light and must be shielded by a dark lens.

Mr. Blair is married and has one dependent daughter living at home. His average weekly wage at the time of the accident was $5.33 per hour or $213.20 per week. As of January 1,1975, he was earning $5.84 per hour or $234.00 per week.

KRS 342.730(l)(c)27. provides as follows:

If the effects of any of the injuries, or disabilities, from occupational diseases, or losses, mentioned in this section adversely affect a workman’s ability to labor, or limit his occupational opportunities to obtain the kind of work he is customarily able to do, his compensation benefits shall not be limited to the amounts provided by this section, and he shall be awarded compensation benefits under some other applicable or appropriate section of this chapter which would provide more compensation benefits for his disability.

As to limitations on the claimant’s occupational opportunities, the Board made the following findings of fact:

Three vocational experts testified in the case, David Dobson, William E. Durbin and William A. Duffy. Mr. Dobson felt that the Plaintiff would sustain some loss of employment opportunity should he ever leave his present job at GE. He did feel that because of the job skills possessed by the Plaintiff that he should be able to find employment'. Mr. Duffy, the Manager of Employment & Relations Practices at General Electric testified that prior to Plaintiff’s accident he was able to perform approximately 90% of the jobs at GE and after the accident, he could still perform between 80% and 83% of the jobs there. This would translate into an occupational disability for loss from 7% to 10%. Mr. Durbin, an employment counselor, testified that the Plaintiff would be precluded from competing in 3% to 4½% of the jobs on the open labor market as the result of his injury.

The Board then proceeded to award compensation under the schedule of benefits provided under KRS 342.730(l)(c)16.

The appellant argues that in light of the testimony of the three vocational experts it was error for the Board not to award benefits under KRS 342.730(l)(c)27. We disagree. The evidence was that Mr. Blair had returned to work at the same job classification and in fact was making more money after the accident than he had before. He has considerable job security as a result of accumulated seniority, and his supervisor testified that Blair’s job performance is satisfactory.

Under these facts, the Board could properly find that the loss of his right eye had not affected his occupational opportunities to obtain the kind of work he is customarily able to do. We find no error in the Board’s refusal to apply KRS 342.730(l)(c)27.

The judgment is affirmed.

ALL CONCUR.


author: COOPER, Judge.

text:
    Lucky Kenneth KIRBY, Appellant, v. Richard E. WOOD et al., Appellees. Richard E. WOOD, Cross-Appellant, v. Lucky Kenneth KIRBY et al., Cross-Appellees.
    Court of Appeals of Kentucky.
    July 22, 1977.
    Rehearing Denied Aug. 26, 1977.
    Discretionary Review Granted Nov. 14, 1977.

      Rees Kinney, Jarvis, Payton & Kinney, Greenville, for appellant.
    C. Terry Earle, McGaw & Earle, Madison-ville, Thomas Shewmaker, County Atty., Greenville, for appellees.
    Before COOPER, LESTER and WHITE, JJ.
   COOPER, Judge.

This is an election contest brought pursuant to KRS 120.155. The facts are not in dispute. On November 2,1976, in a regular school board election for District No. 5 in Muhlenberg County, plaintiff, Richard E. Wood received 527 votes and the defendant, Lucky Kenneth Kirby, the incumbent, received 704 votes. The sole basis for this action by Wood is that voting machine # 33506 in precinct No. 8 (Beechmont) malfunctioned in that it would not register more than nine votes, which was the number of votes registered on that machine for Wood, for the candidate occupying the place on the ballot where Wood’s name appeared. The significance of the failure of machine # 33506 to function becomes apparent when the voting pattern and total votes in the precinct are analyzed.

There were two voting machines placed at precinct No. 8 in anticipation of a heavy voter turnout. According to the protective counter and the public counter, 441 persons voted on the “good” machine at precinct No. 8. Of these 441 voters, 400 (or 90%) voted in the school board race, 159 for Kirby and 241 for Wood. According to the protective counter and the public counter, 432 persons voted on the “bad” machine at precinct No. 8. Of these 432 voters, 172 were recorded as voting for Kirby and 9 were recorded as voting for Wood. This small number of votes in his favor caused Wood to formally request the Board of Election Commissioners to test the machine, pursuant to KRS 117.305. The Commissioners caused the lever opposite Kirby’s name to be pulled 100 times and it registered 100 votes. Then, they caused the lever opposite Wood’s name to be pulled 100 times and it registered 9 votes. The conclusion is inescapable that more than 9 persons voted for Wood on Machine # 33506. Thus, if Kirby received the proper number of votes on the “bad” machine; if the same percentage of persons who were registered as voting on the “bad” machine voted in the school board race as voted on the “good” machine (90%); and if Wood received all of those votes in excess of 181, the number actually tallied for Kirby and Wood, then Wood would have received more than the 178 additional votes needed to be declared the winner. The question . then arises as to whether Wood has a remedy and if so, what?

The trial court refused to allow Wood to introduce the testimony of persons who voted on the faulty machine in the Beechmont Precinct, and who were willing to voluntarily testify that they voted for Wood in the election in question, in order to have their votes counted for him. Wood contended that by this testimony he could have proven that he, in fact, received the greater number of votes east in the election and should be declared the winner.

The trial court reached the conclusion that it could not be fairly determined who had won the election, so it declared there had been no election and that the office was vacant. Kirby appealed from that portion of the judgment which declared there was no election. Wood cross-appealed because the trial court refused to allow him to prove he was entitled to the office in question.

Two questions are to be considered by this Court, to-wit:

I. WAS THE TRIAL COURT IN ERROR IN REFUSING TO ALLOW WOOD TO INTRODUCE INTO EVIDENCE THE TESTIMONY OF PERSONS WHO VOTED ON THE FAULTY VOTING MACHINE IN THE BEECHMONT PRECINCT AND WHO WOULD VOLUNTARILY TESTIFY FOR WHOM THEY VOTED IN SAID ELECTION IN ORDER TO PROVE THAT WOOD IN FACT, RECEIVED A MAJORITY OF THE VOTES CAST IN THE SCHOOL BOARD ELECTION IN QUESTION?
II. DID THE TRIAL COURT HAVE JURISDICTION UNDER KRS 120.-165(4) TO DECLARE THAT THERE HAD BEEN NO ELECTION IN THE PRESENT CASE WHERE IT APPEARED FROM THE RECORD THAT A NUMBER OF VOTES SUFFICIENT TO AFFECT THE OUTCOME OF THE ELECTION WERE NOT COUNTED BECAUSE OF THE FAILURE OF A VOTING MACHINE TO PROPERLY REGISTER THE VOTES CAST ON IT?

It has long been settled that in the review of election matters courts of equity have no inherent power to try election contests. Wilson v. Whitley, Kentucky, 159 Ky. 69,166 S.W. 775 (1914). Its jurisdiction to contest elections is purely statutory. Gross v. Ball, 258 Ky. 730, 81 S.W.2d 409 (1935).

Appellee’s argument to permit testimony from various persons who would testify that they voted for him is persuasive, but again Kentucky law is well settled that voters will not be permitted to testify as for whom they voted. Little v. Alexander, 258 Ky. 419, 80 S.W.2d 32 (1934). The rationale for this holding is that it protects the integrity of the secret ballot, as well as the whole electoral process. If a person were permitted to testify, the Court would be relying upon voluntary witnesses, and could possibly be confronted with a one-sided distorted viewpoint.

We believe the trial court was not in error in refusing to allow persons to testify as for whom they voted. We affirm the lower court’s holding to this extent.

The next question presented in this case concerns the jurisdiction of the trial court under KRS 120.165(4) to declare there had been no election due to the apparent failure of a voting machine.

This appears to be a case of first impression in Kentucky as the sole basis for the contests of the election is an allegedly defective voting machine. KRS 120.165(4) reads as follows:

If it appears from an inspection of the whole record that there has been such fraud, intimidation, bribery or violence in the conduct of the election that neither contestant nor contestee can be judged to have been fairly elected, the circuit court, or the Court of Appeals, on appeal, may adjudge that there has been no election. In that event the office shall be deemed vacant, with the same legal effect as if the person elected had refused to qualify.

All parties concede that the trial court did not have inherent power to decide the present election contest, that the sole jurisdiction of the trial court is conferred by statute.

Many cases have been submitted in this matter but none are in point, which leaves this court with the arduous task of construing KRS 120.165(4) as outlined above.

In order to accurately assess the letter of the statute it is necessary to define “fraud, intimidation, bribery and violence”. Such definitions, as defined in Black’s Law Dictionary, are as follows:

FRAUD. An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right; a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury.
INTIMIDATION. Unlawful coercion; duress; putting in fear.
BRIBERY. The offering, giving, receiving, or soliciting of any thing of value to influence action as official or in discharge of legal or public duty.
VIOLENCE. Unjust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or fury.

The definitions of these proscribed acts indicate their nature as being mala in se or involving moral turpitude. Consequently, a malfunctioning machine does not come within the language of the statute; and statutory jurisdiction is not conferred on the Court. The fact that jurisdiction cannot be exercised by a court in an election case in the utter absence of statutory authority has been recently confirmed by the Court in Thompson v. Kenton County Board of Education, Ky., 535 S.W.2d 68 (1975), where the Court of Appeals affirmed a lower court’s dismissal of an action on the ground that there was no statute permitting the contest.

The only irregularity involved in this election contest was the malfunctioning of a voting machine as stipulated by the parties. Evidently, this situation was not contemplated by the legislature in the aforesaid statute. Since the Courts have no inherent power in equity in election contest cases, a circuit court may only acquire jurisdiction in cases such as the one at bar by an act of the legislature. It is the well recognized function of the courts to interpret laws and not to make them. It is our opinion that the opinion and judgment of the trial court constitutes judicial legislation which cannot be upheld.

It is our opinion that the trial court lacked jurisdiction to rule that there had been no election, that said case should have been dismissed for lack of jurisdiction.

The judgment is affirmed in part, reversed in part, and remanded for findings consistent with this opinion.

All concur.