text:
    James L. CAIN and Clarence L. Morrow, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 29, 1977.
    Terrence R. Fitzgerald, Deputy Dist. Defender, Louisville, for appellants.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

At about 3:30 on Saturday afternoon, November 1, 1975, two men held up and robbed a Kroger grocery store at 1318 Berry Boulevard in Louisville. A short time later the appellants, James Leroy Cain and Louis Clarence Morrow, were arrested in an apartment at 1619 Onita Court, which is in the same general sector of the city. The arresting officers made a search of the apartment and recovered a pistol, a sawed-off shotgun, and the rolls and packages of money that had been taken in the robbery. Both men were indicted for first-degree robbery (KRS 515.020) and for the additional crime of first-degree wanton endangerment (KRS 508.060), the latter charge having resulted from the firing of a gun at a police officer during the chase following the robbery. They were tried together and both were convicted on the robbery count. Morrow was convicted on the wanton endangerment count also. Their sentences were fixed at 20 years each on the robbery charge and five years for Morrow on the wanton endangerment count.

In this appeal Cain and Morrow contend that they were denied a speedy trial as guaranteed by the 6th and 14th Amendments of the United States Constitution. Cf. Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). They contend also that the items of evidence uncovered by the search should have been suppressed.

The indictment was returned on November 10,1975, and the appellants were placed under $100,000 bond each. Their subsequent efforts to have the amount of bail reduced were unsuccessful, and they remained under detention until tried. The trial was held on October 13 and 14, 1976.

Because the trial court from which these appeals were taken apparently does not make a practice of entering formal orders setting and resetting trial dates, the record does not provide a very satisfactory history of events pertaining to the speedy-trial issue. There were many pretrial motions and several changes of counsel for the respective appellants. In his motion to dismiss for failure to provide a speedy trial, filed on October 13, 1976, the day of the trial, Cain recited chronological data that are not otherwise supported by the record, but are not controverted either, so we shall assume his narrative to be substantially correct. It says that the first setting was for December 12, 1975, and that he announced ready for trial but on motion of the Commonwealth the trial was reset for March 23, 1976; that on March 23,1976, he moved for a speedy trial (this is shown in the record), but again at the behest of the Commonwealth the case was passed until April 23, 1976; that the same things happened again on April 23, 1976, and the case was passed to June 9,1976; and that on June 9,1976, a further continuance was granted on motion of his codefendant (Morrow), over Cain’s objection, whereupon Cain moved unsuccessfully for a dismissal.

On September 9, 1976, Morrow filed a lengthy handwritten motion for dismissal reciting much of the same information contained in Cain’s subsequent motion of October 13, 1976, differing only in the description of what happened on December 12, 1975, and June 9, 1976. Morrow’s motion says that a pretrial hearing (rather than a trial date) was set for December 12, 1975, whereas Cain says that was the trial date and he was ready for trial. In any event, it seems that Morrow was “out on a court order on December 12, 1975, being in an Indiana jail. A partial transcript of proceedings held on March 23, 1976, indicates that after the Commonwealth had announced not ready by reason of the failure of a witness to appear both Cain and Morrow announced ready for trial, insisted on their right to a speedy trial, and objected to a continuance. Then on April 21, 1976, Morrow notified the trial court by letter that he needed eye surgery, and this must have produced results, because the next pertinent record is an order directing that he be transferred at once from the Louisville General Hospital to the Court House “for trial this date, June 9, 1976.” At this time, says Morrow (incorrectly), his own motion for a continuance on account of his eye condition was denied, but then on motion of the Commonwealth, over his objection, the trial was reset for October 13, 1976.

The transcript of proceedings held on June 9,1976, shows that the Commonwealth and Cain were ready for trial but that after a jury had been partially selected Morrow moved for and was granted a continuance. On this occasion the prosecuting attorney advised the court that he did not wish to try Cain and Morrow separately, because he had prepared his case on the basis of their being tried together. The trial court was faced with a motion by Morrow for a continuance and a motion by Cain for an immediate trial. Counsel for Cain stated that he would have no objection to a continuance if the amount of bond were reduced, but the trial court, having already conducted two hearings on motions for a reduction in the amount of bond, again declined to reduce it. It appears from the June 9 colloquy among court and counsel that September 13, 1976, was the earliest open date for which the trial could be rescheduled, and it was tentatively set for that time. The circumstances under which it was further deferred until October 13, 1976, are not reflected by the record.

To summarize the essential facts, these men were arrested on November 1 and indicted on November 10, 1975. On December 12, 1975, their trial was set for March 23, 1976. At that time, however, a continuance was granted because a witness for the Commonwealth was absent. The trial was reset for June 9, 1976, but on the latter date Morrow insisted on a continuance (presumably upon good cause), and because the Commonwealth, which was ready for trial, had not prepared for a severance the court continued the case as to both defendants. It was finally tried on October 13, 1976.

We descry in this record nothing to suggest any purpose on the part of the Commonwealth to stall off a trial, nor any indication of actual prejudice to the defense of Cain and Morrow, each of whom presented a fantastic story without attempting to corroborate any part of it by other witnesses who were in a position to know the circumstances leading up to their fortuitous arrival at the vicinity of the robbery just in the nick of time to be incriminated in it. On June 9, 1976, which certainly was within a reasonable time for the trial to be held, the continuance was initiated by Morrow, and Cain’s only objection to it was that he could not meet the required amount of bail. We recognize, as pointed out in Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), that the prejudice to a defendant from delay in being brought to trial includes the mental and physical anguish of jailhouse incarceration, and is not confined to possible impairment of his defenses. We therefore must and do take that regrettable condition into account in determining “how long is too long in a system where justice is supposed to be swift but deliberate.” Id., at 407 U.S. 521, 92 S.Ct. 2187.

Though Cain and Morrow were diligent in asserting the right to a speedy trial, and endured the oppression of languishing in jail for over 11 months awaiting it, under the balancing test prescribed in Barker v. Wingo, 407 U.S. 514, 530 et seq., 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we reach the conclusion that in view of the causes for the delay its length was not so unreasonable as to violate the constitutional rights of either.

The matter of the search presents a more difficult problem, and among other things the Commonwealth contends that even if it was invalid the other evidence of guilt was so overwhelming that the error in admitting the fruits of the search was not prejudicial. This requires us to summarize the evidence.

Morrow is short and dark and Cain is taller and lighter. The robbery was perpetrated by two black men, one short and dark and the other taller and lighter. They arrived and left in a brown Pontiac automobile owned by William R. Hayes, a witness whose role in the case will be discussed below. The taller man pointed a pistol at Eva Thorpe in the office and took the money while the short man held a shotgun on the rest of the people in the store. Mrs. Thorpe saw the tall man’s face, but she could not thereafter identify him.

Martha Stovall, one of the customers in the store, testified that she got a good look at the man with the shotgun, and at the trial she positively identified Morrow as that man. She said also that she had made an identification in a police lineup that night, but an officer who assisted in conducting the lineup testified that although Morrow was in the lineup Mrs. Stovall picked out a man named Hayes.

Rickie Mills, a Kroger employe, saw a brown Pontiac drive up to the store at 10:30 or 11:00 in the morning of November 1 while a Brink’s man was delivering a supply of money. The car was occupied by two men, one of whom entered the store and looked the place over. Mills identified Cain as this man. While the robbery was in progress that afternoon Mills slipped out the back door of the store building and saw what appeared to be the same brown automobile in the parking lot, so he took its license number. There was “a man slumped down in the seat,” but Mills “couldn’t tell exactly who it was.” That night at a police lineup he recognized Cain’s face but had some doubt because his size and build seemed different from those of the man he had observed in the store that morning.

Officers Joseph Knipp and James Brown were on duty in a patrol car three or four blocks away from the Kroger store when they received a radio report of the robbery. They proceeded at once to the scene and then heard another report to the effect that the culprits (described according to Knipp as three, and according to Brown as two, black males) had been seen on or near the Watterson Expressway. The officers drove to the south side of the expressway, parked their automobile, climbed the fence and went across to the other side. Brown crossed the fence along the north side of the expressway and went into a wooded field behind Nichols Hospital while Knipp ran along the inside of the fence. Knipp heard two shots fired and saw one black person r'unning. He returned to the patrol car and reported the incident by radio. Meanwhile, after going into the field Brown encountered two black men at a distance of about 50 yards. The shorter one of the two fired a shotgun at him, and after firing one return shot with his pistol Brown dropped to the ground for protection. (Neither shot found its mark.) The two fugitives disappeared into a drainage ditch leading under the expressway to the rear of the apartments on Onita Court. At the trial Officer Brown positively identified Cain and Morrow as the men he had encountered and Morrow as the one who had fired the shotgun in his direction.

Sgt. Jack King, a detective on the Louisville police force, was on duty in his car near the scene of the robbery when he heard a radio message to be on the alert for two black males in a brown Pontiac automobile with the license number given by Mills and by another Kroger employe. He discovered the automobile stopped near Onita Court and saw two black men running northward from it toward the Watter-son Expressway, which they crossed after climbing a fence. He returned to the automobile, and a short time later a person he knew but did not identify at the trial came up and reported that the people who had run from the automobile had gone into building No. 9 at the north end of Onita Court. Sgt. King thereupon radioed for help and a few minutes later he was joined by a large group of police officers. They closed in on the apartment at 1619 Onita Court and called for the occupants to come out. In due course Morrow came to the door in his underwear, whereupon the officers entered, took Morrow, Cain, and “another black male” whose name Sgt. King could not recall into custody, and searched the apartment. They found the money hidden in the lower part of the refrigerator. The shotgun (from which the stock had been removed) was discovered in the back of an overstuffed chair, which had been split open to allow the gun to be slipped inside the covering. It is not clear from the evidence just where the pistol was found, but we presume it was with the money in the bottom of the refrigerator. It is conceded that none of these items was in “plain view,” and there was, of course, no warrant for the search.

This brings us to the testimony of the most equivocal witness, yet the key witness, in the case, a man named William Hayes, whose brown Pontiac automobile was used in the robbery. Both Hayes and his son Robert were joined with Cain and Morrow as indictees on the robbery count. Robert was not called as a witness by either side, and the transcript reflects what appears to be almost a concerted effort by the prosecution and defense alike to avoid revealing his role in this bizarre event. Whether he was the driver who waited in the car while the other two men held up the store, was the third man apprehended in the apartment at 1619 Onita Court, or was the helpful informant who told Sgt. King that the fugitives were to be found there we do not know. In any event, when the case was called for trial on June 9, 1976, the Commonwealth succeeded in settling with William and Robert Hayes for guilty pleas on reduced charges. It was brought out on cross-examination of William Hayes that he had pleaded guilty to a charge of criminal facilitation (KRS 506.080) with the understanding that the Commonwealth would recommend probation of his sentence, but upon objection of the prosecuting attorney defense counsel were not permitted to question him with respect to the disposition of Robert’s case.

William Hayes testified that he had known Morrow for some time but had never seen Cain before November 1, 1975. He first saw Morrow that morning at 1821 Coral Court, where Robert lived with his mother and a girl-friend. He was not asked and did not say how or when he met Cain, but testified that later in the morning Cain and Morrow were with him at 1619 Onita Court. He explained that 1619 Onita Court was his girl-friend’s apartment and that he lived there. At another point in his testimony he said that his residence on November 1, 1975, was at 5311 Rangeland Road, so presumably he spent time at both places. Why Cain and Morrow happened to be with him at 1619 Onita Court that morning, and when they left, is unexplained. The story resurfaces in the middle of the afternoon, just before the robbery at 3:30 P. M. At this time, said Hayes, the three of them had been together in his automobile for about an hour, before which he had met Cain and Morrow at 1619 Onita Court. Hayes stopped the car in the Kroger parking lot, left the motor running, and went to a nearby service station to buy some cigarettes. When he returned, the automobile was gone and he did not see Cain or Morrow again until after they had been arrested. He reported his automobile as stolen.

Sgt. Jack King, whose testimony has been mentioned before, took a statement from William Hayes the day after the robbery and said that Hayes told him he knew in advance that his car was going to be used in the robbery and that his son was present in the apartment at 1619 Onita Court but did not have anything to do with it. Hayes, who testified prior to King’s appearance as a witness, admitted making a statement but denied having known in advance that Cain and Morrow were going to rob the Kroger store or use his automobile for that purpose, and also denied having said that his son had been among the group at 1619 Onita Court. He did concede that he had said Morrow told him “there would be a piece of money in it for me,” explaining that Morrow had owed him $25.00 for four years or so. He was not asked what he meant by “in it,” but he emphatically denied having known about the robbery. Nor was he asked whether, when he left 1619 Onita Court with Cain and Morrow, there was any understanding as to where they were going or whether they contemplated returning to the apartment.

Cain testified that he had never been in Louisville before. He had left his home in Chicago at about 9:00 in the morning of November 1, 1975, and was driving to New Orleans to pick up his wife. He was tired and drowsy and turned off Interstate 65 westward onto the Watterson Expressway in search of a restaurant. As fate would have it, he chose a small shopping center in the vicinity of Taylor and Berry Boulevards and found a restaurant there. After consuming some coffee he stopped for gasoline at a service station near a Kroger store. While he was there he noticed a commotion at the store, with policemen going in and out. Meanwhile, he had become confused with respect to the route by which he could get back to 1-65 and got some directions from the service station attendant. Then he went into Kroger’s and bought some cookies. When he returned to his car, there stood this kind stranger Mr. Hayes, whom Cain asked to give him some better directions to 1-65 than he had received from the service station attendant. The directions given him by both of these people seemed complicated, however, so he offered to pay Hayes to lead him to the proper ramp. But lo and behold, Hayes’ car had just been stolen, and he was waiting for his son to come and pick him up. Hayes accepted Cain’s offer to drive him over to the son’s place, but when they got there the son’s car would not start. Hayes said he had just bought the battery that morning and would have to go and exchange it. Meanwhile, observing that Cain was too sleepy to continue his trip to New Orleans right away, Hayes suggested that he could rest in the apartment of Hayes’ girl-friend, who was over at Hayes’ other place and was not at home. When they arrived at 1619 Onita Court they found Morrow asleep in one bedroom, and Cain lay down in another room, where he was sleeping when the officers arrived.

Morrow, who described himself as Dr. Louis Clarence Morrow, was a resident of Indianapolis, where he and his wife operated a restaurant or dining club and he engaged in educational work as well. Somewhere along the line he had been convicted of an embezzlement felony. On November 1, 1975, he had closed his business at a wee hour in the morning and left at about 5:00 A. M. to attend some business in Louisville about an automobile he had bought which had been confiscated by the F.B.I. as a stolen vehicle. Unlike Cain, Morrow was familiar with Louisville and had acquaintances there. He went down 18th street to a restaurant where he knew that the fellow who had sold him the car with the dubious title customarily hung out, but upon his arrival he was informed that this man generally didn’t show up until later in the day. So, having time on his hands Morrow began telephoning some of the people he knew, and in this manner got in touch with his old friend William Hayes. When Hayes found out Morrow was in town he insisted on coming right over to see him. After they talked and Morrow had explained the occasion for his being in Louisville, Hayes suggested that Morrow go with him to pick up his girl-friend’s check. Morrow at first demurred on the ground that he was tired and needed some rest, but Hayes had just the ticket for that ailment. Morrow could rest and relax at this very place where Hayes was going to get the check — 1619 Onita Court! You can guess the rest.

The contention of Cain and Morrow that they were denied a fair hearing in chambers on their motion to suppress the fruits of the search needs no discussion, because the Commonwealth defends the evidence solely on the basis that they had no standing to challenge the search. It is the Commonwealth’s theory that Cain and Morrow were not legitimately on the premises at 1619 Onita Court and had no reasonable expectation of privacy or freedom from governmental interference. We are not so sure of that.

Hayes’ statement that the apartment belonged to his girl-friend and that he was living there was not contradicted. If it is true that when Cain and Morrow were apprehended they were in the apartment at the invitation of Hayes, we think that under the rationale of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and Butler v. Commonwealth, 536 S.W.2d 139 (Ky.1976), they were lawfully on the premises and had standing to challenge the search. This particular factual issue, however, was never presented to or resolved by the trial court, and if these appeals were to stand or fall on that question it would be necessary for us to remand the proceeding to the trial court to conduct a hearing and make findings of fact in that respect.

Actually, it is our own viewpoint that under the exigencies of the case the war-rantless search was perfectly reasonable and ought to be sustained regardless of whether Cain and Morrow had standing to contest its validity, but we are not at all confident that this position would be favorably received in terms of contemporary federal precedents, and even some of our own that owe their existence to the necessity of compliance with higher authority. So we assume for purposes of the argument, as apparently the Commonwealth does also, that if Cain and Morrow had standing to challenge it the search cannot be upheld as constitutionally reasonable. Cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1972); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Harris v. Commonwealth, Ky., 469 S.W.2d 68 (1971); Nichols v. Commonwealth, Ky., 408 S.W.2d 189 (1966).

On the other hand, incriminating as that evidence was, a careful study of the other testimony in the case convinces us that even without it a conviction would have been virtually inevitable. The in-court identifications provided by Mrs. Sto-vall and Rickie Mills suffer to some extent from their earlier reactions at the police lineup, but they gain much corroborative authenticity from the unwavering identification given by Officer Brown. And whatever may have been the role of William Hayes in the affair, or the deficiencies in his testimony, the unavoidable impression left by the evidence is that if he had told more it probably would have been worse, not only for him but for Cain and Morrow. Perhaps, indeed, that would explain why he seems to have been cross-examined with kid gloves. In summary, Cain is identified at the store in the morning and Morrow in the afternoon. The automobile used by the robbers is identified beyond quibble or question. Hayes puts them in the car. Both are identified during the chase by a police officer. The empty car is found near Onita Court. They are found in 1619. If they are telling the truth, Hayes is lying and all three of the other identifying witnesses are mistaken. Their stories, especially Cain’s, rival Grimm’s Fairy Tales and are utterly uncorroborated. In terms of the Harrington-Chapman criterion we are of the opinion beyond a reasonable doubt that the admission of the items turned up by the search was, if erroneous, harmless error. Cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966).

The one other point made by Cain and Morrow was not preserved for review. When the trial court would not permit counsel to cross-examine William Hayes on the subject of what kind of a deal had been made with the Commonwealth in his son Robert’s case, the proper procedure was to move that the examination be conducted by way of avowal outside the hearing of the jury. Cf. RCr 9.52. The inquiry was, of course, admissible to discover possible bias on the part of the witness, and the trial court erred in disallowing it, but without an avowal to show what a witness would have said an appellate court has no basis for determining whether an error in excluding his proffered testimony was prejudicial.

The judgment is affirmed.

REED, C. J., and CLAYTON, PAL-MORE, STEPHENSON and STERNBERG, JJ., sitting.

All concur.

       Probably “Oneida,” but spelled “Onita” throughout the reporter’s transcript.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Jerry Lee HOWARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 29, 1977.

      Jack Emory Farley, Public Defender, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

Jerry Lee Howard appeals from a judgment of conviction entered by the Bullitt Circuit Court finding him guilty of first-degree sodomy, KRS 510.070, and sentencing him to 20 years’ imprisonment. There being no purpose to be served in detailing the facts of the incident as the jury determined it to have occurred, we proceed to discuss the eight assignments of error which the appellant alleges merit reversal of his conviction.

The appellant’s three initial allegations of error concern the indictment charging him with the offense and the Commonwealth’s answer to his requested bill of particulars. He argues the indictment was defective in that its terms charged only the misdemeanor offense of fourth-degree sodomy, and thus it failed to give him notice that he was charged with committing a felony. He further argues the indictment and the Commonwealth’s response to his requested bill of particulars failed to notify him of which of the three subsections of KRS 510.070, specifying the circumstances under which the offense can be committed, he was charged with violating, and so failed to protect him from being again placed in jeopardy for the same offense. As a corollary to these contentions, he also argues the instructions given the jury were erroneous because they concerned an offense not charged in the indictment. Because we are of the opinion the indictment herein was sufficient to give appellant notice of the offense with which he was charged, and feel the alleged error regarding the response to the requested bill of particulars has not been preserved for review, we find these arguments meritless. The indictment in question set out the offense charged as follows: “On or about the 10th day of May, 1976, in Bullitt County, Kentucky, the above named Defendant committed first-degree sodomy by engaging in deviate sexual intercourse with [the prosecuting witness], against the peace and dignity of the Commonwealth of Kentucky.” In its heading, the indictment designated the number of the statute charged to have been violated, KRS 510.070, and indicated this to be a Class B felony. We thus cannot perceive how the indictment indicates the offense charged to be the misdemeanor offense of fourth-degree sodomy, as appellant alleges. Although we shall assume it would have been preferable for the indictment to have generally indicated the manner in which the offense was committed by designating the appropriate subsection of the statute, in our opinion this omission was not fatal.

Under our Rules of Criminal Procedure, which embrace the principle of notice pleading, an indictment is sufficient if it fairly informs the defendant of the nature of the crime with which he is charged, without detailing the “essential factual elements.” Finch v. Commonwealth, Ky., 419 S.W.2d 146, 147 (1967). This the indictment does, and in view of the fact that the appellant’s defense at trial was an absolute denial that he had committed the offense, we do not feel he could have been prejudiced by any lack of information or by any misconception of just what he was being charged with. We thus cannot find that the indictment was invalid, RCr 6.12; Wilson v. Commonwealth, Ky., 445 S.W.2d 446, 447 (1969); and there is therefore no need to address the alleged error regarding the first-degree sodomy instruction given the jury. As concerns the matter of the possibility of the defendant’s being twice placed in jeopardy as a result of the failure of the indictment to specify which subsection of KRS 510.070 he was charged with violating, we observe there existing no possibility of such occurring, due to the imperfection in the indictment charged by the appellant. If the prosecution below had failed, the Commonwealth could not have then again proceeded against the appellant by a second indictment charging a specific violation of one of the subsections of the statute, because the instant indictment, charging as it did a violation of KRS 510.070 by “engaging in deviate sexual intercourse,” was broad enough to cover all possible means of committing the offense. See Wilson, supra, 445 S.W.2d at 448.

In regard to the alleged failure of the Commonwealth’s response to the requested bill of particulars to give the appellant notice of which subsection of KRS 510.-070 he had been charged with violating, our review of the record indicates the appellant raised no objection to the responses contained in the bill of particulars when they were filed, and that he proceeded to trial where he made no objection when the Commonwealth revealed its theory of the case was that the crime was committed by forcible compulsion. The alleged error was thus not preserved for our review.

By appellant’s fourth and fifth assignments of error, he contends the trial court erred in failing to grant his motions for a continuance. The record discloses that appellant moved for a continuance prior to trial, citing as his reasons a lack of time for his court-appointed attorney to prepare a proper defense and his desire to seek out private counsel to represent him, but does not reflect a ruling by the court on this motion. On the day of the trial, counsel for the appellant again asked the court to continue the case, stating as his reasons, “It’s ■just that some things are coming up and I had a short time to prepare the case and after I received the response (to the requested bill of particulars) Monday afternoon, I had only 24 hours to prepare.” By separate arguments he now contends the trial court abused its discretion in denying him a continuance, arguing this ruling deprived him of his right to counsel of his own choice and deprived his court-appointed counsel of an opportunity to adequately prepare his defense.

In considering the question of abuse of discretion, it is necessary to examine and weigh the particular circumstances in each case. Gibson v. Commonwealth, Ky., 417 S.W.2d 237, 239 (1967). As concerns the allegation that the trial court’s ruling deprived the appellant’s court-appointed counsel of an opportunity to adequately prepare his defense, we observe that while Howard was charged with a serious crime, the central issue at trial was the rather narrow one of credibility. The prosecuting witness testified he was forcibly sodomized by the appellant. The appellant denied this, claiming he had ejected the prosecuting witness from his car after the prosecuting witness had made homosexual advances to him. The appellant’s defense at trial was, in our opinion, well presented by his attorney, and we have not been shown either that the appellant’s trial counsel could have done more had additional time been granted, or that a continuance would in some other way have been advantageous in the preparation of his defense. In the absence of such showing, it is manifest that the court did not err in overruling the motion for a continuance. In regard to the argument that the denial of a continuance deprived the appellant of his right to counsel of his own choice, as has been indicated, the trial court did not rule on the motion for a continuance in which this was listed as a supporting ground, and when a continuance was again requested before the commencement of the trial, no mention was made of the appellant’s desire to retain different counsel. Upon the denial of the motion for a continuance, no objection based on this ground was made by appellant. In the absence of this ground for a continuance being raised before the trial court at that time, we conclude the error not preserved for our review.

By appellant’s sixth assignment of error he claims the trial court erred in overruling his motion for a directed verdict of acquittal, arguing the Commonwealth failed to prove the sodomy was committed by “forcible compulsion,” in that there was no showing that the victim resisted the attack in any way. We disagree. “Forcible compulsion” is defined by KRS 510.010(2) as “. . . physical force that overcomes earnest resistance or a threat, express or implied, that overcomes earnest resistance by placing a person in fear of immediate death or physical injury to himself . .” In the commentary to this section, “earnest resistance” is said to require . . more than token initial resistance but less than a showing that the victim was physically incapable of additional struggle against his assailant. Where additional struggle would obviously be useless and dangerous, the failure to struggle should not absolve the accused.” Here the prosecuting witness testified he was convinced that the appellant was armed with a pistol during the incident and that he had been threatened by the appellant that . . he was going to kill me if I didn’t do what he told me to do.” He further testified that in committing the offense, the appellant grabbed him by the throat and hit him in the back of the head. This testimony sufficiently proves the “forcible compulsion” element of the offense, and the motion for a directed verdict of acquittal was therefore properly denied.

Appellant next contends the prosecution made improper comments in cross-examining him which substantially prejudiced his right to a fair trial. The questioning complained of is as follows:

“106 You’re used to testifying in Court?
A No.
107You have never testified in court?
A One time, yes.
OBJECTION BY COUNSEL FOR DEFENDANT
OBJECTION SUSTAINED
108 Why don’t you tell the truth and tell this jury that you took this boy out there and you committed sodomy on him?
A I said .
109 Is that the truth?
OBJECTION BY COUNSEL FOR DEFENDANT
OBJECTION OVERRULED
A No, it is not.
110 You know it is?
A It is not.”

As is revealed by the above, the appellant objected to the prosecution’s questioning regarding the appellant’s being accustomed to testifying in court, which objection was sustained. No further relief, in the form of an admonition to the jury or a motion for a mistrial or a discharge of the jury, was requested, so we must assume the appellant was satisfied by the court’s action. Under this state of the record, we are unwilling to hold the substantial rights of the appellant have been prejudiced by this question. RCr 9.24 and 9.26; Taylor v. Commonwealth, Ky., 386 S.W.2d 716 (1965). In regard to questions 108 and 109, to which the appellant objected but was overruled, it is our conclusion that this error does not require reversal of the conviction because, upon considering the whole case, we do not feel there is a substantial possibility that the result would have been any different without these questions. Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969).

The appellant’s final alleged error, regarding the instruction given the jury defining “deviate sexual intercourse” has not been preserved for review, either by the making of an objection or by the offering of an alternate instruction. It may not now be assigned as error. RCr 9.54(2).

The judgment is affirmed.

All concur.


text:
    Charlotte Louise EDWARDS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 29, 1977.

      Aubrey Williams, Haney Jones, III, Thomas L. Hogan, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Patrick B. Kimberlin, III, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

This appeal results from a judgment of conviction entered upon a jury verdict finding the defendant guilty of murder, KRS 507.020, and sentencing her to 20 years’ imprisonment. Six errors warranting reversal of this conviction are alleged to have been committed by the trial court.

On the morning of January 17,1976, Maj. Thomas B. Basehart, a United States Army officer stationed at Fort Knox, accompanied his wife and two daughters to the Oxmoor Shopping Center in Louisville for a day of shopping. Desiring to purchase a birthday present for one of the daughters, they visited Thornbury’s toy store where Mrs. Base-hart noticed the appellant, Charlotte Louise Edwards, standing in an aisle. Mrs. Base-hart pardoned herself as she passed the appellant, who stepped aside. The Base-harts soon left the toy store and proceeded through the mall, stopping at various establishments along the way, and ultimately reaching a sporting goods store some distance from Thornbury’s approximately 45 minutes later. As they left this shop, one of the children pointed out to Mrs. Basehart that the appellant, whom she remembered from the toy store, was then sitting outside the sporting goods store on a bench. The family decided to place the purchases they had accumulated that morning in their car before resuming shopping, and so proceeded toward the mail’s parking lot. The appellant followed them outside, and exclaiming “you took my child away”, fired some five or six shots at the Baseharts, one of these striking Major Basehart and killing him almost immediately. She then silently dropped her pistol into her purse and calmly walked toward her car. Her escape was prevented by the efforts of Mrs. Basehart and two witnesses to the incident who, after struggling with the appellant, were able to hold her until police arrived. Testimony presented at trial indicated no member of the Basehart family had ever had contact with the appellant prior to that day.

The appellant relied upon the defense of insanity at her trial, presenting lay and medical testimony indicating that she had undergone a psychological transformation following the dismissal of a charge of racial discrimination which she had filed against her employer in 1971, resulting in her exhibiting increasingly bizarre behavior since that time. Testimony presented on her behalf further indicated she had twice been committed to mental hospitals pursuant to mental detention warrants procured by her husband, that she had been released from one such hospital only six weeks prior to the incident in question, and that she had been diagnosed a paranoid schizophrenic by a psychiatrist in 1974. A clinical psychologist who interviewed the appellant three months after the crime also testified that, based on the tests administered on that occasion and the history obtained from her, the appellant was “grossly abnormal” on the day of the crime. The Commonwealth’s lay and medical testimony in rebuttal of the appellant’s proof of insanity indicated that the appellant’s release from the mental hospital six weeks prior to the commission of the offense resulted from her being adjudged nondangerous to herself or others based on the testimony of two psychiatrists at a mental inquest hearing presided over by a judge of the Jefferson Circuit Court. Rebuttal testimony further indicated that during a 27-day period of psychiatric observation commencing approximately six weeks following the crime, no “overtly psychotic process” had been recognized, although the psychiatrists concerned indicated they felt the appellant to be then suffering from some mental illness “in general gross terms.”

Appellant initially assigns as error the trial court’s refusal to direct a verdict of not guilty by reason of insanity, contending she had proven herself insane by a preponderance of the evidence, had thereby shifted to the Commonwealth the burden of proving her sane, and that the Commonwealth had failed to sustain that burden. We disagree, however, not only because the burden of proving a defendant sane does not shift to the Commonwealth as suggested by the appellant’s argument, but also because as we view the testimony presented herein, we feel it fails to relate the diminished mental capacity of the appellant perceived by the witnesses to the legal criteria for insanity established by KRS 504.020.

Where one chooses to rely upon insanity as a defense, the burden rests upon him to prove to the satisfaction of the jury that at the time the offense was committed, as a result of a mental disease or defect, he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. KRS 504.020; also see Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974). Thus, the presentation of evidence merely proving the defendant to be suffering from some form of mental illness at the time of the offense, without also proving him unable to appreciate the wrongfulness of his conduct or to resist his impulse to commit the illegal deed due to the perceived mental disease or defect, will not relieve him from the consequences of his criminal act. Newsome v. Commonwealth, Ky., 366 S.W.2d 174, 177 (1962). After carefully reviewing the testimony presented herein, we conclude it persuasively indicates the appellant to be a woman laboring under a mental disorder of some kind when psychiatrically examined following the commission of the offense. However, we also feel it completely fails to show that on the morning of January 17,1976, a mental disease or defect had so reduced her mental state that she was unable either to appreciate the criminality of her acts or to resist the impulse to commit the crime. The evidence thus fails to establish the facts necessary for a defense of insanity, and no error can be recognized in the trial court’s denial of a motion for a peremptory instruction. Although the foregoing discussion disposes of this allegation of error, we feel compelled to point out for the benefit of counsel that the introduction of proof of insanity by a defendant does not place a burden on the Commonwealth to prove him sane; rather, it entitles the defendant to an instruction to the jury that they may find him not guilty by reason of insanity, and thus properly makes the issue of insanity a matter for the jury’s determination.

The appellant’s second allegation of error concerns the trial court’s refusal to offer to the jury her requested instruction that if they found her not guilty by reason of insanity, she would be admitted to an institution for treatment and care of her mental defect or disease until further order of the court. The argument advanced in support of this instruction is that although information regarding the post-verdict confinement of a criminal defendant has no theoretical bearing on the jury’s verdict, it may have a practical bearing. Because the jury may be unaware that the defendant will be hospitalized if found not guilty by reason of insanity, the argument goes, it may decide for conviction even though it believes him not guilty by reason of insanity, because of a fear that the defendant will be returned to society while still insane. This being an issue never previously addressed by this court, we have consulted decisions of other states and have found the majority rule to be against the instruction. Annot., 11 A.L.R.3d 737 (1963). We decline this invitation to join the minority.

An instruction of the kind here requested has no legitimate bearing on the issue of fact to be decided by the jury when the defense of insanity has been raised, that issue being whether the defendant was mentally responsible when the criminal act was done, and could, we feel, divert the jury’s attention from the resolution of this issue. Moreover, the instruction as requested does not properly declare the law in this state regarding the disposition of a person acquitted of a charged offense because of a mental disease or defect. Although KRS 504.030 permits the prosecutor or the court to institute proceedings directed toward a mental examination and possible civil commitment of a defendant following an acquittal because of insanity, the dangerousness of the defendant to himself or others remains the criterion for determination of whether he should be committed. Thus, even though the jury has determined the defendant should not be held responsible for his criminal conduct because he was insane at the time the offense was committed, if at the time this verdict is returned there are no reasonable grounds for the court to believe the defendant will cause injury to himself or others if not immediately restrained, even the short-term, temporary commitment prescribed by KRS 504.030(2) cannot be ordered.

The appellant’s final four allegations of error charge that she was denied due process of law under the state and federal constitutions when the trial court: (a) failed to comply with Rule 9.32 of the Kentucky Rules of Criminal Procedure in striking an alternate juror from the panel prior to the submission of the case to the jury; (b) limited the testimony of Dr. Donald Tem-pler, a clinical psychologist called as an expert witness by the defense; (c) permitted the Commonwealth’s Attorney to interrupt the appellant’s direct examination of Dr. Arthur Daus, a neuropsychiatrist called as an expert by the defense, to question him in chambers as to his qualifications; and (d) permitted the Commonwealth’s Attorney to make statements appealing to the racial prejudice and passions of the jury in his closing argument.

The appellant charges RCr 9.32 was violated because the slips of paper containing the names of the 13 jurors were not folded and were not placed in the box from which they were withdrawn in open court. Be that as it may, the record establishes that when the clerk withdrew the name of the excluded juror from the box, he raised its cover only enough to permit the entrance of his hand, and not enough to permit him to see inside. Although we do not understand why the procedure outlined by the rule was not strictly followed, since “ . . .it clearly lays down a course of action . . . that can scarcely be misunderstood,” Gill v. Commonwealth, Ky., 374 S.W.2d 848, 850 (1964), we do not consider this deviation from the prescribed procedure to be so serious as to require reversal of the appellant’s conviction; nor do we view the circumstances as indicating it to have been, as appellant appears to be suggesting, part of a scheme to strike this particular juror. That the juror excused would have been more receptive to the appellant’s evidence of insanity than those not stricken because of the confidence in psychiatrists and empathy for the mentally ill she had apparently expressed on voir dire is a matter of speculation into which we refuse to be drawn.

The second alleged denial of due process of law is said to have occurred when the trial court refused to allow Dr. Donald Templer to use terms such as “mentally ill” and “schizophrenic” in his testimony regarding the appellant’s mental condition because, as a psychologist, he was not considered to hold a medical degree. In view of the doctor’s testimony that he “could describe this woman’s condition just as well” by using other terms, and the fact that he was permitted to testify as to the results of the psychological tests he had given the appellant, thereby presenting to the jury the same information without use of the terms objected to, we cannot perceive how the limitation placed upon his testimony deprived the jury of its full import. Being enjoined by RCr 9.24 and 9.26 to disregard any claimed error unless we are of the opinion it affected the “substantial rights” of the defendant, we thus must also hold this error not to be of reversible magnitude.

The third denial of due process is argued to have occurred under the following circumstances: The appellant called Dr. Arthur Daus to testify on the issue of insanity and presented to him a series of questions intended to qualify him as an expert witness. At the conclusion of these questions, the Commonwealth’s Attorney requested the opportunity to voir dire Dr. Daus on his qualifications, saying he had some questions the appellant had not gone into. The trial judge granted the request, and permitted the Commonwealth to then question Dr. Daus outside of the presence of the jury regarding whether he had staff privileges at local hospitals and whether he was certified by the American Board of Psychiatry and Neurology. At the conclusion of the prosecutor’s questioning, the trial judge ruled the doctor could testify as an expert witness, subject to the right of cross-examination by the Commonwealth as to his credibility. The appellant objected to this ruling, stating it would be “grossly unfair, prejudicial, and blatantly disrespectful” to permit the Commonwealth to attack the credibility of the witness on cross-examination. Returning to the courtroom, the appellant refused to resume questioning Dr. Daus and rested her case. She now argues that the interruption of the appellant’s direct examination of the witness to permit the Commonwealth to voir dire him as to his qualifications was improper, contending the proper time for such questioning would have been on cross-examination, following her direct examination of the witness. She further argues herself prejudiced by the trial court’s ruling which would have permitted the Commonwealth to repeat its questions of the witness in the presence of the jury for the purpose of attacking his credibility on cross-examination, claiming this forced her to dismiss Dr. Daus as a witness “without benefit of his very critical testimony.” We cannot agree.

The decision as to the qualification of witnesses as experts rests in the discretion of the trial court. Ky. Power Co. v. Kilbourn, Ky., 307 S.W.2d 9, 12 (1957). Here a question was raised as to the witness’ expert qualifications which the trial court attempted to resolve prior to the witness’ testimony. The manner in which this was done may be considered irregular, but we do not feel it was improper. If the Commonwealth had established in the course of its voir dire examination that the witness was not qualified to testify as an expert, the trial court’s action would have prevented incompetent testimony from being presented to the jury. As for the contention that the court’s ruling forced the appellant to dismiss her witness, it is our observation that the decision of whether to proceed with the testimony of Dr. Daus was a decision voluntarily made by appellant’s counsel, apparently as a matter of trial strategy because it was felt it would be impossible to correct by redirect examination any damage done to the credibility of the witness on cross-examination. As such, it cannot be recognized as prejudicial error. Moreover, it is our further observation that the credibility of every witness presented to testify in a legal proceeding, including expert witnesses, is subject to attack and cross-examination, this being the primary means by which trial counsel can attempt to persuade jurors of the weight or significance to be attached to the testimony of the witnesses, and merely a risk to be considered by trial counsel when the witness is called to testify. We cannot conceive how such a basic matter in the conduct of a trial should warrant reversal of appellant’s conviction here.

Appellant’s final alleged error concerns statements made by the Commonwealth’s Attorney which she argues were intended to appeal to the racial prejudice of the jury. After reviewing the statements in question, which amount to a reference to a possible racial motive for the appellant’s crime, we feel them to constitute merely a fair inference on his part from the evidence given at trial, well within the reasonable latitude permitted him during closing argument. Richards v. Commonwealth, Ky., 517 S.W.2d 237, 242 (1975). We are thus not convinced the argument of the Commonwealth’s Attorney requires a reversal in this case.

The judgment is affirmed.

All concur.

      . It should be noted, however, that the efforts of the psychiatric staff during this 27-day period were hindered significantly by the refusal of the appellant to allow herself to be psychiat-rically examined in the absence of an attorney.


author: PALMORE, Justice.

text:
    Jean Carter POWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 29, 1977.
    James H. Polsgrove, Kenny Grantz, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

Jean Carter Powell appeals from a judgment sentencing her to 15 years in prison pursuant to a verdict finding her guilty of lst-degree manslaughter under an indictment charging her with the murder of William Frederick Silver. Cf. KRS 507.020, 507.030. She contends that the evidence was not sufficient to support a conviction and that the trial court erred in denying her the opportunity of presenting evidence of a suicidal disposition on the part of Silver.

We are of the opinion that the evidence, though by no means overwhelming, was sufficient to justify submission to the jury, but that the court erred in rejecting the testimony in question.

The fatal incident occurred shortly before midnight of March 20, 1975, in the living room of Mrs. Powell’s home in the west end of Louisville. Only she and Silver were in the house at the time, and the .38-caliber pistol with which he was shot belonged to her. A Harrison-Gilroy test of samples swabbed from her hands shortly after the incident disclosed one minute particle of lead on the back of her right hand. An expert described this finding as “consistent” with the hand’s having been used in discharging a firearm. A similar analysis of swabs applied to the victim’s hands at the hospital two days later, after his death, resulted in negative findings (as might be expected, considering the hospital care that would ordinarily be assumed to have taken place during the interim). Only one fingerprint was found on the gun, and it did not have sufficient points of similarity to match it with any of Mrs. Powell’s prints.

Silver was shot in the head behind the right ear. Mrs. Powell called the police, and when they arrived they found Silver lying face up on a couch, which had been opened out so as to make a double bed. There is no doubt that the wound could have been self-inflicted. The revolver with which he had been shot lay on the floor under a coffee table next to the couch.

Aside from these physical details the only direct evidence of what happened consisted of Mrs. Powell’s statements to the investigating officers and her testimony at the trial.

Mrs. Powell was 56 and Silver was 28 years of age. Silver, a native of Hartford, Connecticut, had been blind from birth. He played the piano for a living. Mrs. Powell was a widow whose husband had died in 1971. She lived alone. She and Silver became acquainted through a “lonely hearts” club. Their initial communications were through telephone conversations between Louisville and Hartford, culminating in a visit by Silver to Mrs. Powell’s home in April of 1974. He made another such visit in July and then came back in August to stay, making his home with Mrs. Powell. As best we can characterize it in a few words, their relationship (Mrs. Powell described her feelings toward Silver as “ambiguous”) was something more than platonic but less than conjugal. Silver joined a musicians’ union and Mrs. Powell helped him find a job playing the piano at a prominent Louisville restaurant.

According to Mrs. Powell, she and Silver slept together sometimes but not always. For physiological reasons they were unable to have sexual intercourse, and she preferred that they just be friends. In time, she thought it would be better for him to leave, so that each of them could take up a life of his or her own, but he reacted violently to the suggestion, and said on several occasions that he would never leave the front door alive. They had a conversation about it on Monday before the Wednesday night on which he was shot. Then on Wednesday night, says Mrs. Powell, “I was more emphatic, and I asked him to go home because I said I just wanted my freedom, and I wanted to resume a life of my own.” As on previous occasions, Silver said that he would not leave the front door alive. During the conversation, which apparently continued off and on during the course of the evening, Silver had the pistol in his possession and pointed it at his head from time to time. This too was not entirely unprecedented, as explained by Mrs. Powell: “Well, on different occasions we did have discussions about this [Silver’s leaving], and sometimes he’d say ‘Oh, okay. I’ll go back home,’ and then I would find him sitting in the living room with the gun in his hand to his head, and I always thought it was a threat just to hold on.”

The pistol had been purchased by Mrs. Powell’s husband in 1969. She said that she had fired it but once, in 1972 or 1973, when some boys snatched her purse and she shot over their heads to make them stop. Since her husband’s death in 1971 Mrs. Powell had made it a habit to carry the gun with her whenever she went out. For some period of time before Silver’s death she had been leaving it on the coffee table in the front room for protection in the event of a break-in, explaining that her purse had been snatched four times outside and that there had been illegal entries into the house itself.

On the night of March 20, 1975, after they had been discussing his leaving her, Silver wanted Mrs. Powell to accompany him to the restaurant where he worked (she had an automobile), but she did not want to go and suggested that he use a taxi. She was in something of an ill humor anyway, having had some difficulties in rewinding a typewriter ribbon, but then she changed her mind about staying home, at which point, in her words, events proceeded as follows:

“So, then he said ‘You told me to go,’ or something of the kind, and I said ‘Bill, let’s don’t start another argument,’ or something, I don’t recall exactly the words that were said, not exactly . . . . Well, again it all added up to one thing. I asked him to go home again, and I was very emphatic about it, and he said he would never leave the door alone (sic) again, and I said ‘Oh, yes, every time we have an argument you’re going to shoot yourself,’ and I turned — (pause- witness weeping) — I turned and walked part way into the dining room by the telephone when I heard what didn’t even sound like a shot, it was like a muffled puff, and at first I thought he pretended, and I thought maybe the bullet went through one of my paintings. He was laying down but I expected him to move . . And then I heard the blood falling on the floor ... I fell apart, completely apart. I ran over to him, and I lost my balance but I turned his head over with my hand . . . . I called the police and I think they called the Emergency. I don’t know. I was almost hysterical.”

When the police arrived Mrs. Powell identified herself as Mrs. Silver, later explaining this little white lie as follows: “I was so terribly upset. Possibly I did, but I was embarrassed because Mr. Silver was 28 years old and I was 56 . . . . I was humiliated because Mr. Silver was staying in my house.” She admitted to the investigating officer that she and Silver had been arguing, and when he asked her what the argument was about she replied that it resulted from her telling Silver she wanted a divorce, or, as she puts it, “wanted her freedom.” She denied having shot Silver.

The witness George Morentz (or Morens), called in Mrs. Powell’s behalf, testified that he resided near Hartford, Connecticut, and that Silver had lived in his home for about IV2 years before moving to Louisville. He and his wife met Silver at an Easter party in 1971. Some time afterward Silver came to live with them and played the piano in a ballet studio operated by Mrs. Morentz. This relationship terminated in February of 1974, but on the Commonwealth’s objection the witness was not permitted to describe the circumstances under which Silver left the Morentz home. Counsel for Mrs. Powell then continued his interrogation:

Q- “Let me ask you this, did Mr. Silver ever discuss with you the possibility of committing suicide?”

A- “Yes, he did.”

MR. HUME [prosecuting attorney]: “Your honor, I have agreed to stipulate this. Here is a stipulation that states that twice before this he made such an attempt or some such thing. It has nothing to do with . . . here is a stipulation signed.”

THE COURT: “You wanted to stipulate it and now you don’t want to stipulate it?”

MR. POLSGROVE [defense counsel]: “No, I want to stipulate it.”

THE COURT: “Then we’re not going to be repetitious.”

MR. POLSGROVE: “It won’t be repetitious.”

THE COURT: “Let me see you in chambers . . . .”

REPORTER’S NOTE: “After a short conversation in chambers, which by direction was not made a part of this record, proceedings continued . . . .”

The remainder of this witness’s testimony was directed to subjects other than Silver’s suicidal tendencies. The stipulation mentioned in the exchange quoted above was introduced after one more witness had appeared, and it read as follows:

“It is hereby stipulated by the Commonwealth’s Attorney’s office that the decedent, William F. Silver, made two previous attempts to take his life prior to March 20, 1975.

“It is further agreed, between the parties hereto that this Stipulation shall be read to the Jury and considered as evidence in the trial of this case.”

At the end of the day, following the introduction of this stipulation and another brief appearance on the witness-stand by Mrs. Powell, defense counsel informed the court that he wished to use a character witness but could not have him present until the next morning and would like to have the trial recessed until then. The court responded, “No sir, we are going to finish this case tonight,” whereupon counsel said he guessed he could close without the witness. We continue with the transcript:

THE COURT: “You want to close your case? You’re satisfied?”

MR. GRANTZ [of counsel for the defense]: “I want to renew some motions and maybe make some others.”

MR. POLSGROVE: “Can we perhaps get an avowal in the record in the morning?”

THE COURT: “You can put it in there, but you’ve closed your case.”

MR. POLSGROVE: “It’s simply an avowal.”

THE COURT: “No, I’m not going to let you do that. Do you all agree that this jury can separate tonight?”

After the court had admonished the jurors and dismissed them for the night, a motion for a directed verdict of acquittal was offered and denied, following which counsel for Mrs. Powell made this statement for the record:

“The Defendant offered to place an avowal in the record of this case as to the testimony that would be given by George Morentz (or Morents) if allowed to testify but the court disallowed the making of such avowal prior to the closing of the Defendant’s case.”

The foregoing statement having been made to and in the presence of the court, and there being nothing in the nature of an exception to it other than a parry from the prosecuting attorney to the effect that the stipulation referring to Silver’s suicide attempts had been read to the jury, we presume it to be correct — that is, that the trial court denied Mrs. Powell the opportunity of preserving, by way of avowal, what the witness Morentz would have said.

In his affidavit filed in support of a subsequent motion for new trial counsel for Mrs. Powell reiterated that the court had refused to permit an avowal and that if Morentz had been allowed to testify further he would have said this:

“The witness would further have testified that Wailliam [sic] F. Silver had made repeated attempts on his life, plus other threats to kill himself whenever Morentz or his wife suggested that William Silver remove himself from the premises and find himself a new home. Whenever the security of Silver was threatened is when he would make actual attempts on his own life. In addition, whenever a discussion was had with Silver that seemed unfavorable to his liking he would make threats and gestures indicating that he (Silver) would violently dispose of himself.

“The last time Silver attempted suicide at Morentz’s home, he was taken into custody by the Police and held by them for two weeks until a home could be found for him.

“The witness would have further testified that Silver was an inmate of Norwich Mental Hospital in Norwich, Connecticut for several months and his review of the hospital records at that institution (copies of which he had in court with him) indicated that Silver had suicidal tendencies and recited at least one incident of an attempt to destroy himself.”

We have narrated these trial proceedings in what may seem to be excessive detail for the reason that the answer to each of the arguments made in Mrs. Powell’s behalf depends on a close analysis of the facts.

The evidence to justify a finding of guilt was very thin indeed. However, Mrs. Powell did have a motive for killing Silver, which in a fit of anger or desperation could have overcome her scruples against it. That the shooting came on the heels of an argument between them is admitted. Normally, when an argument between two people ends in the violent death of one of them it is administered at the hands of the other, suicide being an exception and a deviation from the usual course of human affairs. Though perhaps true, Mrs. Powell’s testimony that she had been keeping the gun on the coffee table where Silver had easy access to it did not have to be believed by the jury. The slight trace of lead found on her right hand was an additional straw in the wind, though we are inclined to regard as almost without probative value the expert’s opinion that it was “consistent with” her having fired the weapon — which, after all, is simply another way of saying that it was not inconsistent with her having done so. The only damaging conclusion that could possibly have been drawn from the fingerprint evidence was that Mrs. Powell may have wiped the gun off to obscure the fact that the only fingerprints on it were hers alone, but that would be pure speculation. Many things can happen to fingerprints on a weapon between the time it is picked up and the time it is later examined in a laboratory. Mrs. Powell’s pathetic pretense at first that she was Silver’s wife had no bearing on the question of whether she had killed him. Nevertheless, in the absence of the testimony that might have been given by the witness Morentz but was excluded, it is our opinion that the evidence as a whole was sufficient to justify submission to the jury.

We expressly leave open the question of whether the Morentz testimony would have tilted the balance the other way. That will be for the trial court to determine in the first instance in the light of the evidence heard in the retrial of the case, assuming that the disputed testimony is then produced.

Evidence of a suicidal disposition is analogous to evidence of threats or bad feeling which is admissible as tending to show who was the aggressor when self-defense is claimed in a homicide case. When suicide is the theory of defense the decedent’s previous threats or attempts to kill himself are admissible for the same reason. As this court said in Marcum v. Commonwealth, 308 Ky. 740, 215 S.W.2d 846, 847 (1948), “the great weight of authority is to the effect that in prosecutions for homicide the deceased’s declarations or threats indicating a suicidal disposition, if made within a reasonable time before his death, are not within the hearsay rule and are admissible unless the facts preclude the possibility of suicide.” See Wigmore on Evidence (3d ed.), § 143, and annotation at 83 A.L.R. 434.

RCr 9.52 permits the introduction of an avowal in order that it can be determined on appeal whether the proffered testimony should have been admitted and, if so, whether its exclusion was prejudicial. The right thus to preserve a claim of error is essential to the right of appeal. If a party is forbidden the opportunity of making an avowal he is to that extent deprived of the remedy of appeal, to which he is entitled as a matter of right. Ordinarily a motion for new trial is not a timely method of preserving testimony that has been improperly excluded, but when the aggrieved party has been denied the opportunity of making an avowal it is about the only way in which he can get it in the record. Even, however, had there been no affidavit showing what the witness would have said, or if the affidavit had been controverted, still it would be necessary to treat the trial court’s refusal to permit the avowal as a prejudicial error, because the testimony of the witness himself, under oath and subject to examination and cross-examination, is the only sure indication of what would have been said in the presence of the jury.

It would appear from the colloquy between court and counsel concerning the rejected evidence that the prosecuting attorney was under the impression that the stipulation made the testimony unnecessary. Ordinarily, we think, the reverse would be true. Stipulation or no stipulation, here was a live witness, on hand and ready to give a first-hand eyewitness account of events relevant to the issue being tried. It had not been stipulated that this evidence would not be introduced, and we do not know that it would make any difference if it had. In any event, the stipulation certainly did not have the effect of rendering the evidence inadmissible.

The judgment is reversed with directions for a new trial.

All concur.


author: PARK, Judge.

text:
    Silas W. REDMOND, Appellant, v. Robert WHEELER et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 7, 1977.
    Discretionary Review Denied Feb. 15, 1977.
    Certiorari Denied May 23, 1977.
    See 97 S.Ct. 2628.
    Sam Boyd Neely, City Atty., Mayfield, for appellees.
    Louis V. Mangrum, Mayfield, for appellant.
    Before HAYES, LESTER and PARK, JJ.
   PARK, Judge.

This litigation arises out of a claim filed by the appellant, Silas W. Redmond, before the appellees who are members of the Board of Trustees of the Policemen’s and Firemen’s Pension Fund for the City of Mayfield. Redmond was a former policeman of the City of Mayfield, and he sought to recover permanent disability payments pursuant to KRS 95.550(l)(b). After a hearing, the Board of Trustees denied Redmond’s application for a disability pension. Redmond then initiated this litigation by filing a “complaint and petition of appeal” in the Graves Circuit Court. The circuit court concluded that the actions of the Board of Trustees were supported by the record of the proceedings before the Board. Redmond appeals from the judgment entered by the circuit court sustaining the actions of the Board of Trustees of the Policemen’s and Firemen’s Pension Fund.

Redmond was employed as a policeman by the City of Mayfield on October 1, 1952. Redmond continued to serve as a policeman for the City of Mayfield until December 8, 1967. At that time, Redmond was unable to continue to carry out his duties as a policeman because of physical disabilities. It has been Redmond’s contention that these physical disabilities are attributable to injuries sustained by him in the performance of his duties as a policeman.

When Redmond ceased performing any duties as a policeman on December 8, 1967, the City of Mayfield had no pension fund for policemen. Rather than provide a pension fund, the City of Mayfield had afforded Social Security coverage for its policemen and firemen.

For many years, the City of Mayfield had been classified as a city of the third class. As a city of the third class, the City of Mayfield was subject to the following provisions of KRS 95.520(1):

“There shall be in cities of the third class a policemen’s and firemen’s pension fund, and a board of trustees for that fund.”

Assuming that the city was under a mandatory duty to establish a pension fund, Redmond asserts that he is entitled to a disability pension under the following provisions of KRS 95.550(l)(b):

“If any member of the police or fire department becomes permanently disabled, physically or mentally, while in the performance of duty and by reason of service in the department, so as to render necessary his retirement from service in the department, the board of trustees shall retire him from service and order paid to him monthly fifty per cent (50%) of his monthly salary at the time of his retirement. Provided, however, that the provisions of this paragraph shall not apply unless the disabled fireman or policeman has served from one (1) day to ten (10) years consecutively in his department, such period of service to be fixed by the board.”

As he had served more than ten years prior to the date of his claimed disability, Redmond claims that he is entitled to the disability pension even though the city had not established a policemen’s and firemen’s pension fund on December 8, 1967.

On December 14, 1967, two city employees filed an action in the Graves Circuit Court to require the City of Mayfield to establish a policemen’s and firemen’s pension fund pursuant to KRS 95.520 et seq. Redmond was not a party to this action, although it purported to be brought as a class action on behalf of all of the policemen and firemen in the City of Mayfield. On July 25, 1968, the Graves Circuit Court entered a judgment requiring the city to establish a policemen’s and firemen’s pension fund. In the complaint in the earlier action, the plaintiff sought to require the City of Mayfield to establish the pension fund retroactive to June 16,1966, the effective date of certain statutory amendments. However, in its judgment requiring the city to establish a pension fund, the Graves Circuit Court did not require the City of May-field to make the pension fund retroactive to June 16, 1966. No appeal was taken from this judgment.

On November 11, 1968, the City of May-field enacted an ordinance establishing a policemen’s and firemen’s pension fund as required by the judgment of the Graves Circuit Court. With respect to the funding of the pension fund, the city had the following discretion under KRS 95.580(1):

“The policemen’s and firemen’s pension fund in cities of the third class shall consist of: (a) The proceeds of an annual tax, which may be levied by the city legislative body, of not less than one cent (1$) nor more than four cents (4<t) on each one hundred dollars ($100) in value of taxable property, (b) All rewards, fees, gifts and emoluments paid or given on account of extraordinary service of any member of the police or fire department, (c) Assessments, which the board of trustees of the pension fund may make, upon each member of the police and fire departments, of not less than one per cent (1%) nor more than four per cent (4%) of his salary, to be withheld from the monthly salary and paid by the city treasurer into the pension fund.”

Under the enabling ordinance, the pension fund was not funded until January 1, 1969, when the city commenced deducting four percent of each fireman’s and policeman’s salary and levied a special three cent tax on each $100.00 in value of taxable property, as authorized by KRS 95.580(1). Redmond filed his claim for a pension on August 28, 1969.

The board of trustees of the pension fund and the circuit court both concluded that Redmond was not entitled to any benefits from the pension fund because he was not an active policeman on the date the fund was established and because he never made any contributions to the fund. Redmond argues that this permits the City of May-field to benefit by its own failure to carry out its duty to establish the pension fund.

Even though the city had a mandatory duty to establish the pension fund, the city did have discretionary powers relating to the fund. It was within the discretion of the city to determine the special tax rate, within a maximum and minimum rate, and it was within the discretion of the city to determine the employee contribution, again within a maximum and a minimum limit. The city also had discretion to determine the length of service required before a policeman would be entitled to a disability pension although Redmond’s period of service did exceed the ten year maximum service limitation provided by KRS 95.-550(l)(b).

The Pennsylvania Supreme court was faced with a similar problem in Commonwealth v. Council of City of Beaver Falls, 355 Pa. 164, 49 A.2d 365 (1946). The Supreme Court of Pennsylvania stated:

“The legislative scheme for the establishment and maintenance of police pension funds is obviously based upon the principle of joint contributions by the policemen and the city. The Third Class City Law directs that the fund is to be maintained by a monthly charge against each member of the police force and also that a payment is to be made annually of a certain proportion of the taxes collected by the city. While, on first impression, it might seem that where a city has, either wilfully or negligently, failed to carry out the obligations imposed upon it by statute, as here for a period of ten years, it should, however belatedly, be compelled to perform retroactively the duty which it has thus neglected or defied. But, as a practical matter and as far as the present case is concerned, the original situation cannot be restored in a way to make possible a satisfactory remedy for the condition caused by the city’s delinquency. The sums which should have been deducted from the wages of the policemen cannot now be recaptured, and the personnel of the force has undoubtedly suffered changes during that ten year span. To establish, therefore, a fund for those years which would consist only of contributions now to be made by the city and thus give to the policemen benefits toward the realization of which they did not make any payments whatever into the fund, would be to provide a fund not constituted in a manner contemplated by the law, for, while the amount to be paid in by the policemen was to be left to the discretion of the city authorities, the statute clearly designs that some such payments should be made and that the retirement allowances to the policemen should not become mere gratuities on the part of the taxpayers. Since the council of Beaver Falls cannot now effectively exercise a discretion in regard to the payments which the policemen themselves should have made, it should not be compelled to exercise such a discretion with regard to the payments which the city should have contributed. Laches may, under some circumstances, be imputed to the Commonwealth as well as to individuals (Commonwealth ex rel. Attorney General v. Bala & Bryn Mawr Turnpike Co., 153 Pa. 47, 25 A. 1105; Bailey’s Estate, 241 Pa. 230, 88 A. 428; Commonwealth ex rel. Margiotti v. Union Traction Co. of Philadelphia, 327 Pa. 497, 513, 194 A. 661, 669), and here, for twelve years no action was taken to enforce the city’s obligations although the members of the police force could presumably have induced the Commonwealth at any time during that period to bring the proceedings on their behalf which it has now instituted. To disregard that delay would be to allow the parties who alone are to reap the benefits of the fund to escape bearing their share of the necessary burden, and, as neither the letter nor the spirit of the law can now be retroactively enforced as a whole, to enforce a partial performance of it would obviously meet the requirements neither of justice nor of practicality.”

The reasoning of the Supreme Court of Pennsylvania applies with equal force to the facts in this case. As it relates to cities of the third class, KRS 95.520 to 95.620 had remained essentially unchanged since 1956. See 1956 Kentucky Acts, Chap. 31. The constitutionality of such legislation had been recognized since the decision in Board of Trustees of Policemen’s and Firemen’s Retirement Fund of City of Paducah v. City of Paducah, Ky., 333 S.W.2d 515 (1960). Yet, while employed as a policeman, Redmond never made any claim that the City of Mayfield should establish a pension fund. Even if Redmond is not bound by the judgment in the earlier class action which refused to make the establishment of the pension fund retroactive, neither justice nor practicality require that Redmond be entitled to share in a pension fund which was not established until long after he ceased to be an active policeman and to which he never contributed.

The court concludes that the circuit court did not err in dismissing Redmond’s complaint.

The judgment of the circuit court is affirmed.

All concur.


author: HAYES, Judge.

text:
    Wilfred H. GAINES and Elizabeth Sue Parris, Appellants, v. BOARD OF EDUCATION OF DAYTON, Kentucky, INDEPENDENT SCHOOL DISTRICT, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1977.
    Arthur L. Brooks, Brooks & Sullivan, Lexington, for appellants.
    Stephen D. Wolnitzek, Taliaferro & Smith, Covington, for appellee.
    Before HAYES, HOWARD, and WIL-HOIT, JJ.
   HAYES, Judge.

This is an appeal from a judgment entered in Campbell Circuit Court, Honorable John A. Diskin, Judge, by which the complaints of the appellants were dismissed thereby affirming the refusal of the appel-lee to recognize the employment contracts of appellants as teachers in the Dayton School System.

Prior to May 15, 1975, Gaines and Parris had been employed by the Board of Education for one year on a limited contract basis, as defined by KRS 161.720. On May 12, 1975, the Superintendent for the Board of Education submitted to the Board his recommendations for employment for the 1975-1976 school year which were approved by the Board, although no evidence can be found in the record on appeal to support same. The Superintendent did not recommend either of the appellants. On May 12, 1975, the Superintendent by letter, over his signature as Secretary of the Board, advised Gaines and Parris they would not be re-employed.

The Campbell Circuit Court made findings of fact and conclusions of law and entered an order denying the appellants’ request for injunctive relief requiring the School Board to re-instate the appellants to their teaching positions without loss of pay.

The' appellants contend that the giving of timely written notice to each of appellants by the Superintendent that their teaching contracts would not be renewed did not serve to terminate their employment since the notice was not approved by the official action of the Board. We disagree and affirm the judgment of the trial court.

This case requires an examination of two statutes. The first is KRS 161.750(2) which states:

Any teacher employed under a limited contract and ineligible for a continuing contract shall at the expiration of such limited contract be deemed re-employed under the provisions of KRS 161.720 to 161.810 for the succeeding school year unless the employing board shall give such teacher written notice on or before the fifteenth day of May of its intentions not to re-employ him; .

The other statute is KRS 160.380, which requires all appointments, promotions and transfer of principals, teachers and other school employees to be made only upon recommendation of the School Superintendent.

In his brief, appellant cites Johnson v. Dixon, Ky., 501 S.W.2d 256 (1973). In that case the court stated: “As we construe KRS 161.750, no recommendation by the superintendent is required for re-employment of a teacher serving under a limited contract, so re-employment . . . is a matter to be determined by the board. . ” The factual situation in the Johnson case, however, is different from the present case. In the Johnson case the court was asked to determine whether the denial of re-employment was arbitrary and discriminatory in that the School Board when employing teachers gave preference to county natives. The above quoted statement in the Johnson case is mere dictum, and not the law of Kentucky.

Under KRS 160.380 teachers may be employed by the local Board of Education only upon the recommendation of the local Superintendent of schools, and any employment without that recommendation is void, Beverly v. Highfield, 307 Ky. 179, 209 S.W.2d 739. KRS 160.370 designates the Superintendent to be the executive agent of the Board of Education and as such he is charged with the duty of seeing that all laws relating to schools, and the rules and regulations of school boards are carried into effect. In the instant case, he fulfilled his statutory duties by submitting his recommendations to the School Board, and thereafter, as the executive agent of the School Board notifying the teachers per KRS 161.750(2).

It would seem obvious that the underlying intent of KRS 161.750(2) is to insure teachers, who have not reached tenure stature, ample notice of not being re-employed so that they will have adequate time to obtain employment elsewhere for the coming school year, and that the teacher has a right to know why he is not being re-employed, so that the situation may be corrected if it is within the power of the teacher to do so.

The judgment is affirmed.

All concur.


author: VANCE, Judge.

text:
    Tilmon LOCKARD, Appellant, v. WORKMEN’S COMPENSATION BOARD et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1977.
    Rehearing Denied June 3, 1977.
    Discretionary Review Denied Sept. 13, 1977.
    Robert E. Hogan, Louisville, for appellant.
    Louis G. Mayer, Dept, of Labor, Charles S.Cassis, Brown, Todd & Heyburn, Louisville, Kenneth E. Hollis, Gen. Counsel, Dept, of Labor, Frankfort, for appellees.
    Before COOPER, REYNOLDS and VANCE, JJ.
   VANCE, Judge.

This is an appeal from a judgment dismissing appellant’s petition for review of an order of the Workmen’s Compensation Board. The only question for review is whether the petition for review was filed in time.

KRS 342.285 provides that an order or award of the Workmen’s Compensation Board may be reviewed upon the filing of a petition within twenty days after the rendition of the award or order.

The order for which review is sought was entered on January 19, 1976. The petition for review was filed February 10th, twenty-two days after the rendition of the order.

Appellant contends the filing was timely because CR 6.05 is applicable. CR 6.05 allows three extra days when a party has a right or is required to do some act within a proscribed period after the service of a notice or other paper upon him when the service is made by mail.

The service of the order upon appellant was by mail and he contends the twenty-day period in which an appeal may be filed should be extended by three days under CR 6.05.

Appellant’s position would be sound if the appeal time commenced to run from the date of the service of the order. KRS 342.-285 provides, however, that the appeal time shall run from the date of rendition of the order, not its service upon the parties. In Kendrick v. Fields, Ky., 384 S.W.2d 64 (1964), the dismissal of an appeal for late filing was upheld in the face of appellant’s contention that he received no notice of the order but where the board’s records indicated notice was mailed immediately after entry on the order.

The notice of the order in this case was mailed to appellant’s counsel four days after it was entered. Appellant contends this was not immediate notice as required by KRS 342.275. The purpose of immediate notice, of course, is to allow the parties time in which to perfect an appeal and the board will not be permitted to frustrate an appeal by delaying notice of its orders until the time for appeal has expired. Jones v. Davis, 246 Ky. 293, 54 S.W.2d 681 (1932).

There is no showing or contention here that the mailing or the notice was so delayed that appellant did not have time to perfect his appeal within the time allowed by statute.

The judgment is affirmed.

All concur.


author: HOWARD, Judge.

text:
    Kay Horner PORTER and Alexander M. Horner, Appellants, v. CITIZENS FIDELITY BANK AND TRUST COMPANY et al., Appellees. CITIZENS FIDELITY BANK AND TRUST COMPANY et al., Appellants, v. WYATT, GRAFTON & SLOSS, et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1977.

      Robert L. Maddox, Jon L. Fleischaker, Wyatt, Grafton & Sloss, Louisville, for appellants.
    James Brown, Louisville, for Citizens Fidelity Bank & Trust Co.
    Homer B. Parrent, Louisville, for Carl John Horner and Annette Kay Horner.
    Kyle T. Hubbard, Louisville, for Alexander M. Horner, Jr., Vicki Lee Horner, Holly Kay Horner and unknown defendant.
    Before HOWARD, LESTER and PARK, JJ.
   HOWARD, Judge.

This appeal involves three trusts in which the trustee, Citizens Fidelity Bank and Trust Company, requested a declaration of rights from the Jefferson Circuit Court. The trial court determined that even though the 1941 trust created by Albert Horner, hereinafter the Horner Trust, no longer had any corpus, that it had not terminated because it still had a valid trust purpose, that being a conduit for other property which might be given to it. It further held that the Fearson Trust created by Horner’s aunt, Margaret Horner Fear-son, in 1943 for the benefit of his children, Kay Horner Porter and Alexander M. Hor-ner, had terminated by its own terms at his death. With the trial court’s determination that the Horner Trust was still in existence at the time of Albert’s death, the corpus of the Fearson Trust would pour over into the Horner Trust instead of being paid to Kay and Alexander. The trial court also assessed as part of the cost of the declaratory judgment attorney fees for Kay Horner Porter and Alexander M. Horner.

The appellants, Kay Homer Porter and Alexander Horner, contend that the trial court erred in its determination that the trust had not terminated. They maintain that the Horner Trust had terminated for all intents and purposes because the insurance policies which were the corpus of the trust were allowed to lapse.

We find that the trial court did not err in its determination that the Horner Trust had not terminated. An examination of the pertinent sections of the trust reveal that the grantor intended the trust to have a dual function, that being a conduit for any property which might be devised, bequeathed or given to the trust as well as being an insurance trust. Since the grant- or’s purposes in establishing the trust has not yet been accomplished, the trial court was correct in determining that the Horner Trust had not terminated despite its lack of corpus. Bogert, Trusts, p. 536 (5th ed. 1973); Delaware Trust Company v. Davis, 39 Del.Ch. 322, 163 A.2d 588 (1960).

The next question that we are presented with is what was the intention of Mrs. Fearson when she had the Kay Horner Porter Trust and the Alexander Horner Trust created. The appellants contend that she meant for them to have the corpus of the trusts if the Horner Trust had terminated or no longer had any corpus. The pertinent section of the Fearson Trusts is as follows: “. . . if the trust has been terminated by reason of the fact that Albert W. Horner’s wife and children predeceased him or otherwise.” The appellants maintain that the “or otherwise” phrase covers situations such as the trust no longer having any corpus. To bolster this view, they sought in the lower court to introduce evidence of this intention by a letter written by Mrs. Fearson several years after the creation of the trust. In the letter Mrs. Fearson stated that she considered the Hor-ner Trust terminated due to its lack of corpus. The trial court would not allow introduction of the letter. Since the trust is clear and unambiguous on its face, it would have been a violation of the parol evidence rule to have allowed introduction of extrinsic evidence such as the letter so the trial court’s ruling was correct.

We find no merit in the appellants’ interpretation of the term “or otherwise” in the Fearson Trusts. Since the Horner Trust was still in existence at the time of Albert’s death the corpus of the two Fearson Trusts should pour over into the Horner Trust and be administered according to its terms.

Ky.Rev.Stat. 418.070 provides that it is within the discretion of the trial court to award costs if the parties have not so stipulated. The trial court in this case awarded attorney fees for Kay Porter and Alexander Horner as part of the costs of the action. Exception to this ruling has been raised.

We find that it was improper for the trial court to award attorney fees in this action. The cases, Goodwin’s Ex’r v. Goodwin, 301 Ky. 526, 192 S.W.2d 493 (1946) and Croley v. Adkins, 305 Ky. 765, 205 S.W.2d 332 (1947) cited by appellee, Wyatt, Grafton and Sloss do not support the position that attorney fees should be awarded. The above cited cases are suits to settle an estate where there is no question that the results will benefit all the parties, which cannot be said here. In this case there is a true adversary proceeding where the interest of the parties is in conflict.

We find no authority to support the position that the trial court had the inherent authority to award attorney fees. There has long been a distinction in Kentucky between costs and attorney fees with costs encompassing the actual expenses of litigation and not attorney fees.

The judgment pertaining to the trust is affirmed and reversed as to the attorney fees.

All concur.


author: GANT, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. Patrick H. MOLLOY, Commonwealth Attorney, Fayette County, Kentucky, Petitioner, v. N. Mitchell MEADE, Judge, Fayette Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    May 4, 1977.

      Patrick H. Molloy, pro se.
    N. Mitchell Meade, pro se.
   OPINION AND ORDER GRANTING PETITION FOR WRIT OF PROHIBITION

Before MARTIN, C. J., and PARK and GANT, JJ.

GANT, Judge.

On April 7, 1977, Daryl Ray Driver, was received at LaGrange Reformatory to commence serving a ten-year sentence on a conviction from the Fayette Circuit Court on the charge of Trafficking in Heroin. On April 8,1977, Andrew Kane was received at LaGrange Reformatory to commence serving a five-year sentence from the Fayette Circuit Court on a conviction of Theft by Unlawful Taking. Thereafter, on April 19, 1977, the Respondent issued an order directing the Warden of the Reformatory to release each of these men on their own recognizance and ordered them to appear in the Fayette Circuit Court on April 22,1977, for the purpose of hearing a motion for shock probation. The Commonwealth, on relation of the Commonwealth Attorney of Fayette County, immediately filed a petition for writ of prohibition in this Court, seeking an order preventing the Respondent from releasing each of said subjects prior to the period provided by Ky.Rev.Stat. 439.265.

The statute in question provides that under these circumstances no defendant may be released earlier than 30 days nor later than 60 days after he has been delivered to the keeper of the institution to which he has been sentenced, either on his own motion or on the court’s motion.

An order staying the order of the Respondent was entered herein on April 20, 1977.

In his return to the petition, the Respondent relies upon several grounds. First, he relies on Ky.Rev.Stat. 23.035. This is merely a statute providing a method for both the circuit court or the appellate courts to reverse, vacate or modify a judgment and is subject to the Rules of Civil Procedure. The statute is usually applied when one party attempts a direct appeal without a previous ruling by the circuit court on a motion for new trial and in any event the time limits established by the Civil Rules are always applicable.

The Respondent further relies upon the cases of Commonwealth v. Kazee, Ky., 252 S.W.2d 20 (1952) and Bax, Sheriff v. Fletcher, Ky., 261 S.W.2d 662 (1953). Both of these cases were predicated upon Ky.Rev.Stat. 451.130(1) and we feel sure that the Respondent must know that this statute was repealed 25 years ago and Chapter 59 of the Rules of Civil Procedure substituted therefor. The present Civil Rules provide for retention over a judgment for a period of ten days and not 60 days and the ten days herein had elapsed. Nor do we intend by this opinion to indicate that the court may utilize the provisions of shock probation as provided by Ky.Rev.Stat. 439.265 within this ten-day period.

It is the opinion of this Court that the case of Commonwealth of Kentucky ex rel. Hancock v. Melton, Ky., 510 S.W.2d 250 is dispositive of the issue here. The head-notes in that case recite:

Probation order under statute authorizing probation on court’s own motion must be entered within the 30-day period commencing 30 days after deliver^ of defendant to penitentiary.

This opinion is not intended in any way to infringe upon the powers of the court to retain control of their judgments for the period provided by the Rules of Civil Procedure. Had the respondent placed the defendants herein in the Fayette County Jail for a period not to exceed ten days, it would clearly be within his power to subsequently probate said defendants. However, once the defendants are committed to the penal institution, it is our opinion that Ky.Rev.Stat. 439.265 is controlling and must be complied with.

The petition for writ of prohibition is granted.

All concur.