author: PER CURIAM.

text:
    Charles Samuel TUCKER, Petitioner, v. KENTUCKY BAR ASSOCIATION, Respondent.
    Supreme Court of Kentucky.
    Nov. 12, 1976.
    Rehearing Denied Jan. 14, 1977.

      William T. Warner, Wood, Goldberg, Ped-ley & Stansbury, Louisville, for petitioner.
    Leslie G. Whitmer, Kentucky Bar Ass’n, John T. Damron, Kentucky Bar Ass’n, Frankfort, for respondent.
   PER CURIAM.

The petitioner, a member of the bar, a captain of and legal adviser to the Jefferson County Police Department, seeks review pursuant to RCS 3.530(e) of an advisory opinion of the Kentucky Bar Association.

The advisory opinion held that in the course of petitioner’s private practice of law (1) neither petitioner nor his associates may defend criminal cases in any court anywhere; and (2) petitioner and his associates may afford representation in motor vehicle cases only as to disputes which arise outside the territorial jurisdiction of petitioner’s department provided:

“(1) [T]hey may not accept employment in any matter with respect to which applicant has acted in any official capacity in cooperation with any other police department or branch of the constabulary, local, state, or federal; (2) they may not represent to any prospective client or to anyone with whom they come in contact in investigating, preparing, or trying a motor vehicle accident case that the lawyer/officer is a police officer or adviser to a police department, except to the extent required by DR 5-105; (3) they may not use personnel, files, or facilities of applicant’s department except to the extent that, and on the same basis as, the same may be available to any other lawyer; and (4) they may not use members of the lawyer/officer’s department as expert witnesses.”

Petitioner argues only with the breadth of the opinion. He concurs with the opinion to the extent that he should not be permitted to defend criminal cases in Jefferson County, but asserts he should be permitted to defend criminal cases outside Jefferson County.

He concurs with the opinion that he should not be permitted to practice in motor vehicle cases arising within the territorial jurisdiction of his department, Jefferson County, but asserts that limitation should be narrowed to the area of Jefferson County outside the city of Louisville and other cities in Jefferson County that maintain their own police departments.

As to representation in criminal cases, we are of the opinion that petitioner is in the identical position as the Commonwealth’s attorney who is likewise not permitted to defend criminal cases anywhere within the Commonwealth. As we view the proposition, it is not a question of propriety, it is the fundamental fact that petitioner by virtue of his position with the Jefferson County Police Department owes his allegiance to the Commonwealth, and the defense of criminal cases outside Jefferson County would not be consistent with such allegiance.

We do not consider In Re Kenton County Bar Association, 314 Ky. 664, 236 S.W.2d 906 (1951), applicable to the situation presented here.

As to representation in motor vehicle cases, we are of the opinion that petitioner’s position with the Jefferson County Police Department militates against such representation. It may be, as argued by petitioner, that as a practical matter the Jefferson County Police Department does not ordinarily or routinely become involved in motor vehicle cases in areas of the county within the larger cities which maintain their own police departments. Unlikely though it may be that officers from petitioner’s department would investigate a motor vehicle accident in the larger cities of Jefferson County, the Jefferson County Police Department has jurisdiction in those cities. KRS 70.540. Police officers who investigate motor vehicle accidents routinely appear in court as witnesses in subsequent litigation. Petitioner, as a police officer and a member of the bar representing a client in a motor vehicle case, would place himself in an awkward position in the eyes of the public who would not understand the fine distinction between overlapping jurisdictions and the practical applications thereof as between petitioner’s department and the various police departments of the cities of Jefferson County.

The opinion of the Kentucky Bar Association is affirmed.

All concur.


source: Caselaw Access Project

author: LUKOWSKY, Justice.

license: Public Domain

text:
    SEVENTH STREET ROAD TOBACCO WAREHOUSE et al., Appellants, v. Gilbert Eugene STILLWELL and Workmen’s Compensation Board, Appellees.
    Supreme Court of Kentucky.
    Dec. 3, 1976.

      Stuart E. Alexander, Louisville, for appellants.
    Richard J. Fitzgerald, Louisville, for ap-pellee Gilbert Eugene Stillwell.
    William L. Huffman, Director of Workmen’s Compensation Board.
   LUKOWSKY, Justice.

The Workmen’s Compensation Board found that the appellee, Stillwell, was 60% disabled and made an open-end award. The most troublesome issue raised by the appellant, Warehouse, is whether the injury Stillwell sustained was related to his work. The facts are in dispute. The version most favorable to Stillwell will be presented because the Board found in his favor.

Warehouse hires casual labor during the tobacco-packing season. Typically, anyone who shows up in the morning will be employed for the day. The pay week runs from Friday through Thursday. According to the president of Warehouse, pay is not to be picked up under any circumstances until the Saturday following the Thursday which ended the pay period. The record does not show that the immutability of this policy was communicated to Stillwell.

Stillwell worked for Warehouse on Thursday, November 29, and on Friday the 30th in 1973. He did not work Monday or Tuesday because he had the flu. On Wednesday, December 5, he came to Warehouse to collect his pay. He stated that the office girl told him to wait until 4:30 p. m. It was then 11:00 a. m. He said that he would talk to the boss. He walked into the yard, told his foreman that he would be coming back to work on Thursday, and slipped on some steps fracturing his skull.

The Board found that a contract of employment is not fully terminated until the employee is paid, and accordingly an employee is in the course of employment while collecting his pay. Larson, The Law of Workmen’s Compensation, Section 26.30. Warehouse contends that since Stillwell’s pay was not due him until Saturday, his attempt to collect it on Wednesday can not be work related.

It should be noted that the 1972 amendments to the Workmen’s Compensation Act repealed KRS 342.005 which stated that to be compensable an injury must be traumatic, sustained by accident and arise out of and in the course of employment. Acts of 1972, Chapter 78, sec. 20. Its successors, KRS 342.620(1) and 342.610(1), merely state that a compensable injury is any work related harmful change in the human organism. The' purpose of this change in the law was to expand workmen’s compensation coverage to non-traumatic injuries. Yocom v. Pierce, Ky., 534 S.W.2d 796 (1976); Haycraft v. Corhart Refractories Co., Ky., 544 S.W.2d 222 (1976). It is the injury element and not the employment element of a workmen’s compensation claim that the legislature meant to expand. “Work related” and “arising out of and in the course of employment” are synonymous terms.

This is not a case in which an employee visited his place of employment to procure a loan from his employer. Stillwell was not seeking a loan. He had accrued the days pay that he sought to collect. It is not clear from the record that Stillwell, a new employee, understood that he could only be paid on Saturday. He appeared confused about how pay was held back by his employer. The evidence was sufficient to authorize the Board to find that the injury was work related. KRS 342.004; 99 C.J.S. Workmen’s Compensation § 214.

There was evidence to suggest that the proximate cause of Stillwell’s injury was his own intoxication. However, we do not believe that the evidence was so strong that the Board was compelled to reach that conclusion.

Warehouse also contended that the evidence was insufficient to support the Board’s finding that Stillwell was 60% disabled. There was medical testimony to the effect that Stillwell was 25% to 30% functionally disabled. The Board has great leeway in translating functional disability into occupational disability. Kilgore v. Goose Creek Coal Co., Ky., 392 S.W.2d 78.

The judgment is affirmed.

All concur.


author: JONES, Justice.

text:
    Ruth Ann HONIGSBERG, Petitioner, v. Frank R. GOAD, Judge, Allen Circuit Court, et al., Respondents.
    Supreme Court of Kentucky.
    Dec. 17, 1976.
    R. Lee Steers, Jr., Steers & Steers, Franklin, for petitioner.
    James S. Secrest, Scottsville, for respondents.
   JONES, Justice.

Ruth Ann Honigsberg seeks a writ of prohibition against the judge of the Allen Circuit Court. She alleges that the Allen Circuit Court does not have jurisdiction to make a determination of the custody of Derick Scott Marsh and Barry Todd Marsh, two sons born to her and Berlin C. Marsh.

Prior to 1969, Ruth and Berlin were husband and wife. They had three children; Berlinda, Derick and Barry. In 1969 she and Berlin were divorced. In a separation agreement Ruth was granted custody of the children. In 1972, Ruth and Berlin agreed that he could have custody of Berlinda. In July 1976, Berlin filed a motion for modification of the custody decree. He petitioned that he be awarded the custody of Derick and Barry. Ruth contested on the ground that the Allen Circuit Court lacked jurisdiction. The Allen Circuit Court found that it did have jurisdiction.

The single issue presented is whether or not the Allen Circuit Court had jurisdiction to determine the custody of Derick, age 12, and Barry, age 9.

Shortly after the divorce in 1969, Ruth and the children moved to Oklahoma. Subsequently, Ruth married Mr. Honigs-berg. Derick and Barry have been living in Oklahoma for the past seven years. They have had brief visitation periods with Berlin during that time. Berlin contends that because the Allen Circuit Court order states that the court retained jurisdiction over custody matters in this case, that vests jurisdiction in the Allen Circuit Court. That argument is unfounded. The Allen Circuit Court cannot retain indefinitely jurisdiction over the custody of the children. This court is of the opinion that the Allen Circuit Court had no jurisdiction to determine the custody of these children. The home state of Derick and Barry is Oklahoma. Therefore, the Oklahoma court is the proper forum to determine their custody.

KRS 403.260, in part, provides as follows:

Custody —Jurisdiction, commencement of proceedings. — (1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
[(a) This state:
1. Is the home state of the child at the time of commencement of the proceeding; or
2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reason, and a parent or person acting as parent continues to live in this state; or]
(b)It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one (1) contestant, have a significant connection with this state; and
2. There is available in this state substantial evidence concerning the child’s present future care, protection, training, and personal relationships; or
(c) The child is physically present in this state; and
1. Has been abandoned; or
2. It is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or
(d) 1. No other state has jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b) or (c) of subsection (1), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and
2. It is in his best interest that the court assume jurisdiction.
(2) Except under paragraphs (c) and (d) of subsection (1), physical presence in this state of the child, or of the child and one (1) of the contestants, is not alone sufficient to confer jurisdiction on the court of this state to make a child custody determination.” (Emphasis added).

This court is of the opinion that the facts of this case are not sufficient to vest the Allen Circuit Court with jurisdiction to make a determination as to the custody of Derick and Barry in accordance with the provisions of the act. See Turley v. Griffin, Ky., 508 S.W.2d 764 (1974).

Therefore, the writ of prohibition is granted. The Respondent Judge is prohibited from proceeding further in this matter.

All concur.


text:
    GEORGE M. EADY COMPANY, Appellant, v. Comer STEVENSON et al., Appellees.
    Supreme Court of Kentucky.
    Jan. 14, 1977.
    William Mellor, Louisville, for appellant.
    Robert M. Lindsay, Louisville, for appel-lee Comer Stevenson.
    Cyril E. Shadowen, Louisville, Kenneth E. Hollis, Dept, of Labor, Frankfort, for appellee, Special Fund.
    William L. Huffman, Frankfort, for Director of Workmen’s Compensation Bd.
   LUKOWSKY, Justice.

The Workmen’s Compensation Board found that the claimant was 70% occupationally disabled and apportioned 35% to the latest injury and the remainder to an aroused dormant nondisabling disease or condition. Thus, both the employer and Special Fund are to pay the claimant 35% disability benefits. The employer has appealed.

The employer’s physician, Dr. Rummage, testified that the claimant’s work-related back injury was completely healed. He attributed the claimant’s remaining problem to a chronic degenerative low back condition which the claimant had before the injury-

Dr. Fischer was appointed by the Board to examine the claimant. His report stated that the claimant was 40% functionally disabled, with 15% attributable to the work-related injury to the back and neck, and 25% attributable to the dormant nondisabling condition of the neck and back which was aroused into disabling reality by the work-related injury.

The employer contends that the claimant’s Form 11, Application for Adjustment of Claim, and his testimony, neither of which mention neck pain, constitute judicial admissions that the claimant did not suffer pain in his neck resulting from the work-related injury. Because Dr. Fischer’s medical conclusions were based upon a related medical history of neck pain as well as back pain, the employer contends that they were not competent for Board consideration.

The doctrine of judicial admissions should be applied only where the state-merits are unequivocal and must be considered to be deliberately true or false. “Most of the cases which hold that a party is bound by his own testimony may be justified upon the theory that they involve a finding that the circumstances under which the party sought to escape the effect of his own admissions were not consistent with honesty and good faith.” Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed., sec. 2594a.

Applying this rule to the facts of this case, we do not believe that the claimant’s failure to mention neck pain in his Form 11 and testimony constitutes a judicial admission that he did not experience pain in his neck. He testified that he experienced pain in the back. The claimant was not asked whether he had ever experienced pain in the neck. Nor was he asked to define what he meant by pain in the back. Pain in the back might include pain in the neck. When asked whether he had any pain in any part of his body besides his back, the claimant said that he also had pain in his leg. He was never asked whether he had pain in any part of his body other than his back and leg.

It is true that on the Form 11 the claimant stated that the pain was in his low back and leg. But we think it would extend the doctrine of judicial admissions too far, if we held, in effect, that everything one was going to tell an examining physician about his injury had to appear on the Form 11.

The employer’s alternative argument is that if Dr. Fischer’s report is competent, the Board was bound as a matter of law to apportion the liability between the employer and the Special Fund in the same ratio that Dr. Fischer apportioned the functional disability. Under this formula the employer would pay benefits for 26¼ disability while the Special Fund would pay the remaining 43¾% disability benefits.

The contention is without merit. Young v. Campbell, Ky., 459 S.W.2d 781 (1970) and Young v. Young, Ky., 460 S.W.2d 832 (1970) require the Board, in a KRS 342.120 apportionment case, to translate functional impairment ratings into occupational disability percentages. Once the findings require apportionment under the statute, the Board is required to first determine the extent of occupational disability attributable to the latest injury alone and the employer is responsible for this. The Board has great leeway in translating functional impairment into occupational disability. Mitseh v. Stauffer Chemical Co., Ky., 487 S.W.2d 938 (1972). The extent of liability of the Special Fund and the exclusion of noncompensable conditions are left to a process which is essentially subtraction.

In its decision of this case the Board meticulously followed the procedure set out in Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971). The employer has no legitimate basis of complaint.

The judgment is affirmed.

All concur.


text:
    Billy Ray BREWER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 14, 1977.

      Jack Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Frankfort, Deedra Benthall-Nietzel, Asst. Atty. Gen., Lexington, for appellee.
   PER CURIAM.

Billy Ray Brewer appeals from a judgment entered on a jury verdict finding him guilty of the crime of theft by unlawful taking (KRS 514.030) and fixing his punishment at one year in prison.

Brewer took a 1975 Honda trail bike from the premises occupied by Martin Joseph Stepp. After the trail bike disappeared, Stepp conducted a search, and with the assistance of police officers, finally located the bike in West Virginia in the possession of Brewer. Brewer asserts upon this appeal that a confession made by him subsequent to his arrest was obtained without his being afforded the rights granted by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and without the presence of counsel. Subsequent to Brewer’s arrest, he was returned to Kentucky and incarcerated in a local jail. While so confined, he discussed his problem with a police officer and the jailer and caused the officer to prepare a confession which he executed in the presence of the officer and the jailer, who signed as witnesses. He now asserts that he did not knowingly and intelligently waive his constitutional rights, predicating his claim upon a medical report which indicated that he was “of low functioning intellectual level with poor insight and judgment.”

The trial court, in an in-chambers hearing, ruled that the confession was admissible. Brewer testified in his own behalf, and although he was somewhat hesitant, he admitted that he was the person who had taken the trail bike and that he had it in his possession at the time it was recovered by the police. This court does not find anything to substantiate Brewer’s claim that his constitutional rights were violated.

Brewer contends that the judgment entered on the jury verdict should be vacated because the trial court failed to follow the presentencing procedures required by KRS 532.050 and KRS 533.010 (Kentucky Penal Code).

KRS 532.050 provides in part as follows:

“(1) No court shall impose sentence for conviction of a felony, other than a capital offense, without first ordering a pre-sentence investigation (after conviction) and giving due consideration to a written report of such investigation.
sfc * sfc ⅜ ⅜ ⅜
“(4) Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed.”

The judgment entered by the trial court on January 3, 1976, was prepared on a printed form in which required information concerning the particular prosecution had been inserted in appropriate blank spaces. There is nothing in the judgment indicating that the trial court ordered the presentenc-ing investigation required by KRS 532-050(1) or considered any such presentencing report or informed the defendant or his counsel of the factual contents of the report as required by KRS 532.050(4). ■ The ordering of a presentencing investigation and consideration of the written report of such investigation is made mandatory by the statute. The court is also mandatorily required to advise defendant or his counsel of the factual contents and conclusions of the investigation and to afford him an opportunity to controvert them should they be adverse to the interest of the defendant. This section of the statute is the same as Section 3425 of the final draft of the Kentucky Penal Code. An examination of the commentary to this draft discloses the proposed scope of this section. This commentary states:

“In deciding upon the disposition of a convicted offender, especially with the many alternatives provided by this code, a court cannot be expected to discharge its responsibilities without full and accurate information about that offender. Such information usually cannot be gained from a trial of the charges resulting in the conviction. This is especially true where the power to assess the quantity of punishment is left, at least in part, for the jury. In recognition of this, Subsection (1) requires a trial judge to receive and consider a presentence report about all persons convicted of felonies. * * (Emphasis ours.)

The requirement placed upon a trial court by the statute is mandatory and does not afford a trial judge the privilege or discretion of determining whether the report will be requested, obtained, or considered. It is a “must” and is in fact a prerequisite to the entry of a valid judgment. In view of the mandatory character of this requirement, the record of the proceeding should clearly disclose the fact that the trial court has fully complied with KRS 532.050 by requesting a presentence investigation, examining and considering the written report as supplied, and informing defendant or his counsel of the factual contents and conclusions contained in the report and the fact that the defendant either requested or did not request time within which to controvert the factual data contained in the report.

KRS 533.010 provides as follows:

“(1) Any person who has been convicted of a crime and who has not been sentenced to death may be sentenced to probation or conditional discharge as provided in this chapter.
(2) Before imposition of a sentence of imprisonment the court shall consider the possibility of probation or conditional discharge. After due consideration of the nature and circumstances of the crime and the history, character and condition of the defendant, probation or conditional discharge should be granted unless the court is of the opinion that imprisonment is necessary for protection of the public because:
(a) There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime; or
(b) The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or
(c) A disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.”

Brewer argues that under this particular section of the statute the trial court is required to consider the question of probation or conditional discharge and to make a record of such consideration and the reason for selecting a particular alternative. The statute also provides that probation or conditional discharge should be granted unless the court is of the opinion that imprisonment is necessary for protection of the public. KRS 533.010(2)(a) through (c) prescribe guidelines to be used by the trial court in making the determination mandated by the statute. Although Brewer argues it to be mandatory upon the court to consider and make a record of its action under KRS 533.010, the statutory requirement is that the court should grant probation or conditional discharge within the guidelines established by the statute. This determination by the court is discretionary rather than mandatory. Yet, the statute requires that probation or conditional discharge be given consideration. KRS 533.010 is taken verbatim from the final draft of the Kentucky Penal Code, Section 3505, except for the deletion of the penalty “life imprisonment without privilege of parole.”

The drafters of the code, in discussing the section, remarked as follows:

“This section provides that encouragement [rehabilitation] in several specific ways. First of all, Subsection (1) provides that probation or conditional discharge may be granted to any offender, without regard to the seriousness of the offense, unless that offender has been sentenced by a jury to death or life imprisonment without privilege of parole. This provision reflects the judgment that powerful and important mitigating circumstances may exist even with commission of the most serious of criminal offenses. No reason exists for denying to the trial court sufficient flexibility to exercise discretionary judgment as to probation or conditional discharge following conviction of such a crime. * * *.
It is to be acknowledged that the trial court must be granted substantial discretion in deciding upon the disposition of convicted offenders. * * *.”

The commentary, in comparing the section as adopted with the existing law, stated the differences between the two to be:

“Section 3505 [KRS 533.010] makes two basic changes in this law. It first requires the judge to consider probation or conditional discharge before imposing a sentence of imprisonment and does not make this subject to a request by the offender. Secondly, it provides guidelines by which the trial judge should exercise his discretion in deciding upon the disposition of an offender.”

Even though the trial court had discretionary authority under KRS 532.050 regarding the granting of parole or conditional discharge, it was required to consider the feasibility of this procedure. In view of this rule, the record of the proceedings leading up to the entry of the judgment should clearly reflect the fact that the consideration required by KRS 533.010 had been afforded the convicted person before judgment was finally entered.

The judgment entered upon the jury verdict in this proceeding is now vacated and the case remanded to the Martin Circuit Court for resentencing after there has been a compliance with KRS 532.050 and KRS 533.010.

All concur.

      . The words “after conviction” added by amendment. See Kentucky Acts, 1976, Chapter 183, Section 5, page 428, effective 6-19-76.


text:
    Brent COOPER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 28, 1977.
    Dale B. Mitchell, Mitchell & Gillum, Somerset, for appellant.

      Robert P. Stephens, Atty. Gen., James M. Ringo, Asst. Atty. Gen., Frankfort, for ap-pellee.
   PER CURIAM.

Appellant was convicted on the charges of sodomy in the first degree, assault in the second degree, and unlawful imprisonment in the second degree.

Appellant contends that the court erred in submitting a sodomy instruction (KRS 510.070), and in refusing to submit an instruction on sexual misconduct (KRS 510.-140) and in refusing to instruct on the meaning of lack of consent as defined in KRS 510.020.

Appellant argues that the sodomy statute and the sexual misconduct statute have the same elements but different punishments, and therefore a conviction for sodomy would result in a violation of the equal protection amendment of the United States Constitution.

More specifically, appellant says that if one uses forcible compulsion to commit deviate sexual intercourse he is guilty of sodomy because the statute expressly says so, and since KRS 510.020 lists forcible compulsion as being one way in which there might be lack of consent, one is also guilty of violating the sexual misconduct statute which speaks of “without the (victim’s) consent.”

KRS 510.140 is as follows:

(1) A person is guilty of sexual misconduct when he engages in sexual intercourse or deviate sexual intercourse with another person without the latter’s consent.
(2) Sexual misconduct is a Class A misdemeanor.

The bare wording of this section at first blush makes it appear to include offenses embraced in other sections of Chapter 510. For example, as appellant argues, sodomy in the first degree (KRS 510.070) may be caused by forcible compulsion which is, according to KRS 510.020, a result of lack of consent. KRS 510.140 provides that sexual misconduct may be accomplished if there is lack of consent of the other person. To give meaning to KRS 510.140 a commentary accompanying KRS 510.140 was included which is in part as follows:

“But the basic purpose of KRS 510.140 is to preserve the concept of statutory rape and statutory sodomy. When read in conjunction with the rape and sodomy statutes, KRS 510.140 is designed primarily to prohibit nonconsensual sexual intercourse or deviate sexual intercourse under two circumstances: (i) when the victim is 14 or 15 and the defendant is less than 21; or (ii) when the victim is 12, 13, 14, or 15 and the defendant is less than 18 years of age. In this context the ages of the defendant and the victim are critical. Force is not an element of this offense. The victim is statutorily incapable of consent. However, mistake as to age is a defense under KRS 510.030.
“The purpose in denominating such conduct between persons within the specified age groups as sexual misconduct rather than rape or sodomy is to eliminate an undesirable stigma. In such cases the defendant may well have been persuaded by the ‘victim’ to engage in the proscribed conduct. It seems unnecessarily harsh to have a defendant within the prescribed age limitation who has been convicted of such a statutory offense to bear a criminal record labeling him as a ‘rapist’ or ‘sodomist.’ KRS 510.140 takes a more realistic approach to the penalty imposed while at the same time prohibiting the undesirable conduct.
“If the accused is 21 or over and the victim is less than 16, the offense constitutes third degree rape. If the accused is 18 or older and the victim is under 14, the offense constitutes second degree rape. Any sexual intercourse with a person less than 12 years old constitutes first degree rape regardless of the age of the accused.”

The commentary was originally a part of the November 1971 final draft of the Kentucky Penal Code, and according to Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (decided September 17, 1976), it is presumed that the legislation assigned to the commentary in the 1974 legislative adoption of the penal code the same meaning and effect attributed to the language by the 1971 commentary. And according to KRS 500.100, the commentary accompanying the code may be used as an aid in construing the provisions of the code.

KRS 510.140 therefore, as interpreted by the commentary, is concerned with cases not specifically covered by other sections of Chapter 510, and appellant’s argument that he was convicted in violation of the equal protection amendment is without merit. In the present case both appellant and the victim were over 21 years of age and neither was physically or mentally incapacitated. KRS 510.140 was simply not applicable and the trial court properly refused to instruct the jury on the offense of sexual misconduct.

Appellant contends that the trial court erred by not permitting appellant to introduce a witness who testified by way of avowal that the victim had made homosexual advances to him. There were only two contentions at the trial, namely, that appellant committed the acts of sodomy by compulsion, as testified to by the victim, and that appellant did not commit acts of sodomy by compulsion or any other means, as testified to by appellant. There was no relevancy to either contention therefore in the avowed testimony that the victim was a homosexual.

We find no merit in other assignments of error advanced by appellant.

The judgment is affirmed.

All concur.


text:
    Australia HICKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.

      Jack Emory Farley, Public Defender, Allen W. Holbrook, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Burrell Frank Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Australia Hicks appeals from a judgment entered on a jury verdict finding him guilty of first-degree robbery and fixing his punishment at ten years’ imprisonment.

Hicks is a rather well-known female impersonator. He apparently plied the trade of enticing people, his customers, to engage in sexual misconduct with him. On August 16, 1975, he agreed to engage in a sexual act with Curtis Trent and in furtherance of that act took him to a room over the Soul Lounge. An argument developed over an increase in the amount Trent was to pay, and Trent, becoming apprehensive of the intentions of Hicks, started to leave. Hicks then pulled out a pistol, put it to Trent’s head, and told him to leave all of his money or he would shoot him. Trent complied with Hicks’ demands and handed him approximately $190. A short time later Hicks was picked up by the police and charged with the crime. He denied using the pistol or even robbing Trent and sought to place the blame on a female who was not identified until Hicks testified at the trial.

Upon appeal Hicks asserts that the court committed reversible error by depriving him due process of law in directing a verdict against him on one element of the defense. Basically, this error consisted of the refusal of the court to submit to the jury the question of whether a pistol was a deadly weapon. The indictment returned by the Fayette County Grand Jury charged that Hicks committed the offense of first-degree robbery by threatening the use of physical force “while armed with a pistol.” There was no evidence that the instrument alleged to have been used was anything other than a pistol, which by statutory definition is a deadly weapon. It should never be necessary in the instructions to define the words, “deadly weapon.” Whether the particular instrument is or is not a deadly weapon should be determined by the court as a matter of law. A pistol is defined as a deadly weapon under KRS 500.080(4), and the extent to which a pistol may be considered a deadly weapon is discussed in Merritt v. Commonwealth, Ky., 386 S.W.2d 727 (1965). The commentary to the Penal Code indicates that this decision was not to be affected by the provisions of the chapter in defining robbery in its different degrees.

In Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1976), this court followed the rule of Merritt and held that a pistol was a deadly weapon as a matter of law. Consequently, this was not an issue to be considered by the jury.

Hicks also complains of the court’s refusal to instruct on second-degree robbery. Any instruction given by the court requires a minimum of supporting evidence at the very best. Hicks vehemently denied participating in the robbery or using the pistol under any of the circumstances detailed in the evidence. With his denying the robbery, he strips the record of any evidence which might support the giving of an instruction on robbery in the second degree.

Finally, Hicks complains that “it was clearly erroneous and an abuse of discretion for the trial judge to refuse to grant a continuance when appellant’s trial counsel was appointed during voir dire.” The issue, as stated, incorrectly outlines the issue argued by Hicks. It might be well to remember at this point that Hicks did not request a continuance of the trial because of what happened. The truth of the matter is Hicks’ counsel was not appointed during the voir dire. The court had appointed the Office of Public Defender to represent Hicks upon his arraignment. Before the case came on for trial, two or three attorneys had represented Hicks in other phases arising out of his misconduct, pending trial. However, he had been represented by counsel at all times, and the record clearly discloses that he absolutely refused to cooperate with any of his counsel. On the day of the trial, counsel then representing him caused to be placed in this record a statement to that effect. After the parties had all announced ready and the voir dire examination of the jury was nearly completed, Hicks informed the court that he wanted another lawyer because the one he had would not fairly represent him. The court, after considering Hicks’ statement, refused to substitute counsel but rather accepted further representation for Hicks by permitting the Honorable Robert H. Jackson of the Public Defender’s Office to assist appointed counsel. This court has examined the record of the trial and is of the opinion that Hicks was more than adequately represented by counsel, and for the reasons set out herein there is no merit in this asserted error.

The judgment is affirmed.

All concur.


author: CLAYTON, Justice.

text:
    Milton RAY, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.

      Jack Emory Farley, Public Defender, J. Vincent Aprile II, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
   CLAYTON, Justice.

Mrs. Iveta Sprowles was working in a liquor store in Springfield, Kentucky, on September 26, 1975, when three black men entered, struck her unconscious, and robbed her of personal items and cash, as well as cash and checks from the store’s cash register. Mrs. Sprowles subsequently identified as a participant in the robbery the appellant, Milton Ray, Jr., resulting in his indictment and ultimate conviction of first-degree robbery, for which he was sentenced to imprisonment for 20 years. He appeals, alleging three separate grounds for reversal.

Appellant first complains the trial court committed reversible error by overruling his motion to suppress any in-court identification of him by Mrs. Sprowles without first conducting an evidentiary hearing outside the presence of the jury to determine whether such identification was tainted by the prior identification during the police station lineup, which was stipulated by the Commonwealth to have been improper. In denying this motion the trial judge indicated he did so because he felt Mrs. Sprowles’ testimony would demonstrate the extent to which her ability to recognize appellant as a participant in the robbery had been influenced by the unduly suggestive lineup, so that any suppression of such evidence in this initial stage of the proceeding he considered to be premature. Although we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant’s conviction. The record shows Mrs. Sprowles testified on direct examination regarding her ability to recognize the appellant and was extensively cross-examined on this same point, but it does not indicate her in-court identification was affected by the prior improper identification. As such, we do not consider the trial court to have committed prejudicial error by permitting the witness to identify the appellant in the jury’s presence.

Appellant secondly argues the trial court erred in denying his motion for a directed verdict of acquittal, contending the evidence does not indicate appellant committed robbery in the first degree in violation of KRS 515.020, and that there was no evidence of his complicity in the offense to make him liable for the conduct of another under the provisions of KRS 502.020(1). We have reviewed the evidence and conclude that it was sufficiently incriminating to warrant submission of the issue to the jury. Cf. Rogers v. Commonwealth, Ky., 444 S.W.2d 548 (1969). The testimony presented, we feel, was sufficient to support a finding that appellant participated in the robbery with a specific intention to promote or facilitate its commission, and so we hold there to have been no error in the overruling of appellant’s motion.

Appellant’s final allegation of error concerns the trial court’s instruction on the law of complicity liability. The trial court instructed the jury to the effect that if it believed from the evidence beyond a reasonable doubt that (1) Ray “or persons aiding and assisting him” stole a sum of money from the Springfield Liquor Store and (2) in the course of so doing and with intent to accomplish the theft “one of them caused physical injury to Iveta Sprowles by striking her with his hand or fist or some instrument,” it should find him guilty of first-degree robbery. Cf. KRS 515.020(l)(a).

Ray argues first that the evidence was insufficient to permit the jury to believe that he personally committed robbery in the first degree, hence the instructions should have embraced only the theory that he was an aider and abettor. Since, however, Mrs. Sprowles did not know for certain which of the participants struck her, and of course did not know which of them took the money, the only proper basis for the instructions was, in effect, that Ray should be found guilty if he participated with one or more other persons in stealing the money and that in the course of and with intent to accomplish the theft any one of them caused physical injury to Mrs. Sprowles. Substantially that is what the instruction in question said.

There are, of course, other ways in which the instruction might very well have been worded. We do not agree that it had to be couched in terms of specific intention on the part of Ray as an aider and abettor. Though KRS 502.020(1) requires as a condition of culpability that an accomplice intend to promote .or facilitate the offense, we think that the word “steal” or “stole” is universally understood to connote an intentional taking. One may “take” unintentionally, but he cannot “steal” unintentionally. So, if a person “steals,” either personally or through a confederate, he is guilty of theft—an intentional taking without permission.

If there is a weakness in the first phase of the instruction, it is in the words “or persons aiding and assisting him.” For one thing, in legal context “aiding and assisting” generally connotes that the person being aided or assisted is the principal actor, whereas this form of instruction treats the “persons aiding and assisting him” as the principal actors. More seriously, however, one might conceivably infer that this expression would fix responsibility on the defendant for an assistant’s act regardless of the purpose for which the assistance had been sought or, indeed, even though the aid and assistance had not been sought at all. For example, in its strict literal sense this language would hold the defendant liable for the act of another person who was assisting him in making a delivery of merchandise to the store, and even though the defendant had not been present. But we think that the possibility of a jury’s speculating beyond the scope of the evidence introduced in this trial was so remote that it would be hypertechnical to declare the instruction prejudicially erroneous.

In future cases with comparable facts it would be better to instruct according to one or the other of the following two alternative forms:

(a) that the defendant stole a sum of money from the_store, OR that another person or persons present with him on the occasion in question did so pursuant to an agreement with the defendant that one or more of them would do so. [Essentially, this form combines the theory of conspiracy with physical presence.]
(b) that the defendant stole a sum of money from the_store, OR that another person did so and the defendant aided and abetted him by standing in immediate •readiness to- ftssisfeihimi-n so ¡doing, ¡[This form presents the theory of aiding and abetting regardless of the existence, vel non, of a conspiracy, or previous agreement.] - -

With respect to the second phase of the instruction, there is no requirement that the physical injury itself be intended. It is not an element of the crime of robbery, but only an aggravating circumstance increasing the degree. When the first phase, discussed above, is properly expressed in the alternative to embrace a theft by the defendant personally or by a confederate acting in concert with him, the second phase may properly read, as it did here, “that in the course of so doing and with intent to accomplish the theft one of them caused physical injury to _ by striking her with his hand or fist [or some other object or instrument].”

The foregoing discussion has been provided only because of the newness of the Kentucky Penal Code. Actually, Ray did not object to the instructions and was not in a position to complain of any error. RCr 9.54(2): Hopper v. Commonwealth, Ky., 516 S.W.2d 855 (1974).

The judgment is affirmed.

All concur.


author: STEPHENSON, Justice.

text:
    Frank Thomas BURTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.
    David F. Broderick, Cole, Harned & Bro-derick, Bowling Green, for appellant.
    Ed W. Hancock, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Frank Burton was convicted of rape and sentenced to life imprisonment. We affirm.

Mabel (Mrs. Frank) Wiseman, an 80-year-old woman, was raped at her home on a Sunday afternoon. After the assailant left, Mrs. Wiseman attracted the attention of a neighbor who contacted the police. The police arrived at the house and, after sending Mrs. Wiseman to the hospital where the rape was confirmed by a physician, found a “Ringo hat” in the bedroom where the incident occurred. The police received information that Burton was wearing the hat on Sunday and that it belonged to Brad Pri-mous. The police arrested Burton the following evening.

At the trial, the prosecution produced the following testimony. Mrs. Wiseman stated that two men came to her home and after entering, sexually assaulted her. She testified, “I think both of them did.” She could not identify Burton or give any description of the men.

A neighbor testified that he saw a man wearing a yellow shirt and yellow trousers step off Mabel Wiseman’s sidewalk onto the sidewalk and cross the street. The man was tucking his shirttail into his trousers. About five minutes later, he heard Mabel Wiseman screaming, went to the house and was told she had been raped. He testified Burton looked a lot like the man he saw, but he could not swear it was Burton. A yellow shirt Burton was wearing at the time of his arrest, which Burton admitted he had worn on Sunday, was introduced into evidence; and the neighbor identified it as the shirt (we assume the same color etc.) worn by the man he saw leaving the Wiseman premises.

Two witnesses testified that on Sunday morning Burton was wearing the hat found at the scene of the crime and introduced into evidence.

A police officer testified that after Burton was arrested he found four bank signature cards in Burton’s pocket, the signature cards were made out to Mr. & Mrs. Frank Wiseman. Another officer testified he found a checkbook with checks imprinted “Mr. & Mrs. Frank Wiseman” on the seat of the police cruiser in which Burton was brought to the police station.

An employee of a grocery store identified Burton as the man who signed one of the Wiseman checks in payment for groceries on Monday, the day after the incident.

A bank employee identified Burton as the man who cashed one of the Wiseman checks at the bank on the same day and identified the signature cards taken from Burton as being the same cards he gave to Burton.

A state police lab technician testified that he found human blood stains and semen on the yellow shirt worn by Burton and introduced into evidence. He was unable to match the blood stains on the shirt with the blood stains on Mrs. Wiseman’s bed because of the small amount on the shirt.

During the course of the investigation, the police interrogated Brad Primous and obtained a statement from him as follows:

“Yesterday on Sun the 22nd of Sept, I was driving a yellow Carmon Giger (sic) —V.W.—I was with Frank Burton who lives at the Avalon Hotel.
“I met Frank at the Avalon Hotel on Sun we were driving around, we were just driving around goofing off—
“Frank Burton was wearing a little wine colored hat, called (the Ringo Hat) —Frank had my hat on — we were drinking beer—
“I hadn’t drink (sic) very much — Frank was driving my car or the one I had borrowed from Walts Transmission were (sic) I work—
“About 2:30 P.M. or 3:00 P.M., Frank drove to a big house on a one way street just down from town. He told me he was going to stop & go in the house for awhile-—
“Frank Burton went to the front door & knocked on the door — A old woman came to door, she asked Frank Burton what he wanted, he (Frank) told her he wanted to come in. We went in & I set (sic) down in the living room — Frank went back in the bed room with the old woman & was talking to her—
“& saw Frank push the old woman down on the bed, & it looked like he was screwing the old woman — she was fighting Frank Burton, but he had already got on top of her — I told Frank to leave the old woman alone — Frank didn’t say anything. He just kept on screwing the old woman.
“I got scared & left the house — I got in the yellow V.W. & left. ' 1
“The hat that the officers found at the scene of the rape is my hat & it is the same hat that Frank Burton had on when we went to the house where he attacked the old woman — All I remember about the old woman was she was real old — I didn’t see Frank Burton anymore until I was brought to the police Dept — The above is a true statement given of my own free will about what happened when Frank Burton took me to a house where a old woman lived that he attacked in the bedroom, I completed the 8th grade & understand the above statement & it is a true statement to what happened — ”

This statement was signed by Brad Pri-mous and witnessed by two officers.

At a bond hearing, Brad Primous testified in substance to the same facts, and on cross-examination denied that the police officers had “pressured him” into signing the statement.

At the trial, Brad Primous repudiated his statement testifying that he had been with Burton the Sunday morning of the crime, but from noon on until evening had been asleep at a friend’s house. He did testify that when he left Burton, the “Ringo hat” was being worn by Burton.

He admitted making and signing the statement and admitted to his testimony at the bond hearing. He testified that he was “scared” when he signed the statement, did not know what he was signing, and hinted that the police officer had used pressure on him to make the statement. His answers to questions as to his reasons for changing his testimony were evasive, and in many instances he did not supply an answer.

The statement was introduced into evidence along with the testimony at the bond hearing. Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969).

Burton, for his defense, denied raping Mrs. Wiseman, denied being in the house where the victim was raped, denied passing the checks, testified he found them on a sidewalk, and denied ever wearing the hat found at the scene. He explained the blood on his shirt as being from a shaving nick, which he had wiped with his shirt. The semem on the shirt was explained as a consequence of having intercourse with a girl he did not name. He claimed an alibi for the approximate time of the rape but could not remember seeing anyone at the club, where he testified he had spent some time, except for the bartender who did not remember seeing Burton. Burton testified that he knew the Wisemans.

One witness was introduced who testified that Brad Primous had parted from Burton at his house about noon and spent the afternoon sleeping.

It is against this background that we consider the principal assignment of error in this case.

After the officer arrested Burton and after twice giving him the “Miranda warning,” Burton made an admission to them while being questioned about the rape. The admission, according to one of the police officers, was “that he had been at the Wise-man home on Sunday and he insinuated that Brad Primous who lives at the Avalon Hotel is the one who assaulted Mrs. Wise-man.”

On the day of the trial, Burton moved to suppress this admission on the ground that he was so intoxicated that he did not voluntarily, knowingly, and intelligently waive his right against self-incrimination.

The trial court conducted a hearing in chambers on the motion to suppress. The two arresting officers testified they had arrested Burton for drunkenness, that he was intoxicated, but that he was coherent and in their opinion understood what he was doing and saying. The trial court (apparently out of an abundance of caution) decided to suppress the evidence, remarking that “in view of the Miranda case it is dangerous to question a man arrested for public drunkenness about another crime.”

In the course of the trial, one of the same officers testifying about the arrest volunteered the following:

“After he was at the police station for a while we advised him of his rights again and where he was questioned about the incident of Mrs. Wiseman.
“On his own free admission, after being advised of his rights, stated that he had been at the Wiseman home.”

Burton objected, the trial court sustained the objection and admonished the jury not to consider the statement. Burton moved for a mistrial which was overruled by the trial court.

Burton argues that this testimony by the police officer, touching on the statement made by him, is a federal constitutional error of such magnitude as to warrant reversal.

The principal argument in support of this contention is based upon the holding in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and our cases following Jackson involving an involuntary confession. Here we are dealing with an admission which falls short of a confession; and in our opinion the applicable test is discussed in Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967), Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and Watkins v. Commonwealth, Ky., 465 S.W.2d 245 (1971).

Chapman rejected the contention that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful, concluding that there may be some constitutional errors which in the setting of a particular case are so insignificant that they be deemed harmless, stating:

“In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one. What harmless-error rules all aim at is a rule that will save the good in harmless-error practices while avoiding the bad, so far as possible.” (Emphasis ours)

Chapman declared that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. In applying the standard, the court found that the error, prosecution comments on the defendant’s not taking the witness stand, was not harmless and reversed the conviction.

In Harrington, the court cited the standard set out in Chapman and affirmed the conviction, basing the decision on the evidence in the record which in the opinion of the court was so overwhelming that the error of admitting the confession of co-defendants, who did not take the witness stand, inculpating Harrington, constituted harmless error.

Here the circumstantial evidence linking Burton with the crime is so strong and when there is added the statement of Brad Primous and his testimony at the bond hearing, which is substantive evidence, we have no hesitation in holding that the portion of.the admission of Burton heard by the jury is harmless beyond a reasonable doubt.

The record clearly refutes Burton’s argument that in this case the question of guilt or innocence is in such delicate balance that the effect of any improper statement made to the jury is prejudicial. We are of the opinion that there is not a close question of innocence or guilt here.

Burton further argues that in cross-examining a defense witness, who had testified as to Burton’s good reputation for truth and veracity, the Commonwealth committed error in attempting to impeach by asking about a specific act of Burton not amounting to a felony.

The simple answer to this assertion is that the trial court sustained an objection and admonished the jury not to consider the question. Burton received all for which he asked. In the absence of a motion for mistrial, we will not consider this assignment of error.

Burton’s contention that he was entitled to a directed verdict is without merit.

The judgment affirmed.

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

LUKOWSKY and PALMORE, JJ., not sitting.


text:
    Oval Lee WRIGHT, Administratrix of Estate of Jesse Edward Wright, Deceased, Appellant, v. ILLINOIS CENTRAL GULF RAILROAD CO., a corp., et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.
    Charles B. West, Henderson, for appellant.
    Alfred C. Ross, Greenville, for appellees.
   JONES, Justice.

This is a railroad crossing case. A tractor trailer driven by Jesse Wright collided with a coal car of Illinois Central Gulf Railroad Corporation as its freight train was moving slowly over a crossing at the intersection of U.S. Highway 231 and the railroad’s siding known as 20th Century Spur. Jesse Wright was killed. Oval Wright, his wife and ad-ministratrix, sued the railroad seeking damages for the wrongful death of her husband.

The trial court directed a verdict for the railroad company. On appeal, Oval contends it was error to direct a verdict against her.

The principal issues are whether the railroad company and its agents were negligent, or whether Wright was contributorily negligent as a matter of law. If the railroad company was free of negligence, Oval was not entitled to recover. If Wright was contributorily negligent as a matter of law, Oval was likewise not entitled to recover.

The accident happened about 11:00 p.m. on a dark June night in 1967 at a crossing over U.S. Highway No. 231 near the southern limits of Beaver Dam in Ohio County. Wright was a truck driver employed by Farmers Tankage Truck Company. On the night of the accident, he was driving a tractor trailer from Bowling Green, Kentucky to Henderson, Kentucky. Part of his route was U.S. Highway No. 231. His usual run was from Henderson, Kentucky to Nashville, Tennessee. On the night of the accident he was taking the place of another driver who was sick. He had done so the previous night. The overall length of the tractor trailer was 44 feet. The trailer was loaded with chicken parts. The gross vehicle weight (including load) was 60,000 to 64,000 pounds. The tractor was in good condition. It had been “rehauled and rebuilt” a short time before the accident. The lights were in “A-l shape” and the brakes “new.”

Wright was traveling in a westerly direction. As he approached the crossing, the train was backing slowly on the 20th Century Spur siding. The engine was pushing 33 pmpty ,coal,hoppers in a. southerly direction on the siding which was perpendicular to U.S. Highway 231. Wright ran the tractor trailer “head on” into the side of the moving train. The tractor trailer crashed into the coal cars with such tremendous force as to cause three of them to derail. One of them was lying on top of the truck. The truck was so demolished that only parts of it could be recovered. Wright was killed instantly.

The only person in a position to see the accident was Richard Wallace. He was sitting in his automobile about “five to six” city blocks from the crossing. He saw the train crew flag and pass over the crossing. He heard the roar of the tractor trailer from some distance back. He described what he observed as follows:

“Q 1. Mr. Wallace what first attracted your attention to this wreck?
A. Well, the first thing that attracted my attention to it was I heard the truck rumbling down the road, and I knowed just exactly about where he was on the road . and when he come up over the raise approaching the crossing, I just made the remark through my head, Buddy, you better be slowing up for there is a train across the crossing down there.
Q 21. Now go on and tell the jury what happened then?
A. Well, as I said before, it was one of the clearest nights, I believe I ever witnessed, there wasn’t a sound, no way. Not a sound— only from the truck — from the exhaust on the truck and a kind of rumbling from the train cars, traveling slow and not much noise coming from them, but I could hear it, and then the next noise was when the truck hit the train and there was a great commotion there.”

There is no evidence to indicate the speed of the tractor trailer. A state trooper testified that he observed skid.marks of 33 feet. 'Those marks were 112 feet from'the railroad track. The trooper could not tell whether the tractor trailer caused the skid-marks.

The evidence shows that in daylight the rail crossing can be seen by a traveler from the top of the hill on this two-lane, 24-feet-wide highway 1,050 feet. Three photographs taken in the day time show the crossing from 120 feet, 400 feet, and 800 feet. The speed limit on the highway is 50 miles per hour at night and 60 miles per hour in the day. On the night of the accident there were two railroad cross bucks marking the crossing. One was on the left side of the highway facing Wright as he approached the crossing. The one on the other side of the tracks was demolished by the derailment of the coal cars.

The train crew testified that a fusee had been lit on the opposite side of the crossing from which Wright approached. It was admitted that no fusee was lit and thrown on the side from which Wright approached the crossing.

Oval Lee Wright recognizes that this court in a long line of cases has held that the mere presence of railroad cars passing over a highway crossing is notice enough to the traveling public of rail cars obstructing the highway. She also recognizes this court has held such a situation negates any duty upon the railroad company to give additional warnings.

However, counsel for Oval makes a forceful argument that black coal cars on a dark night traversing a crossing creates an extra-hazardous situation.

Oval introduced an expert witness with thirteen years’ experience as a traffic engineer with the Kentucky Department of Highways. He had made a special study of the properties of light as related to highway traffic at night time. He testified that “if a black object — nearly all of the light that hits a black object is absorbed and if you have a black background — a black object with a black background it would be practically impossible to see anything or make any distinction of an image.” The witness prepared, and presented the jury a shadow-box demonstration of the properties of light as he explained them. In his brief, counsel for Oval contends that the shadowbox demonstrates why the unlighted, black coal cars, on a dark night and on the black surface of the road, would be virtually impossible for Wright to see. Thus, it is argued that the railroad company has a duty of giving signals or warnings of the presence of its train on the crossing. It is contended that the rule of law that the presence of railroad cars moving across a highway crossing is adequate notice to the traveling public applies only when circumstances are such that the obstructing rail cars would be plainly visible to motorists exercising ordinary care.

This court is of the opinion that this cannot be classified as an extra-hazardous crossing from a topographical standpoint. An extra-hazardous crossing is one that obscures the view of the traveling public approaching a crossing. This may consist of cuts, embankments, vegetation or other obstacles that obstruct the view of the traveling public in close proximity to the crossing. This court is of the view that moving railroad cars on their tracks, though the cars be black as pitch, and in the darkness of night, do not create an extra-hazardous crossing. The train in such a case is rightfully occupying the crossing. The fact that it is there is sufficient warning to the traveler upon the highway. This court is unable to find in this record “any circumstance by which it may be said that, in the exercise of ordinary prudence and foresight, the operators of the railroad should anticipate that a motorist would collide with the side of the moving train in the ordinary course of events. . . . ” Ward v. Louisville and Nashville Railroad Company, Ky., 439 S.W.2d 315 (1969); Gibson v. Louisville and Nashville Railroad Co., Ky., 382 S.W.2d 568 (1964). No fair inference of negligence on the part of Illinois Central Gulf Railroad Company can be drawn from its failure to foresee a situation of this sort so as to take precautionary measures to prevent the occurrence. In the absence of a statute imposing an absolute obligation in this respect, a railroad company is not bound to have gates, lights, or other warnings at a crossing in order to prevent such an occurrence unless the circumstances are such that ordinary prudence and foresight would anticipate that it might happen in the ordinary course of events. See Ward, supra.

The trial court’s opinion and judgment was based upon a finding that no negligence on the part of the railroad was shown. The presence of the coal hoppers moving on the crossing was adequate notice as a matter of law. It is therefore unnecessary to consider the issue of Wright’s contributory negligence.

There is absolutely no merit in the contention that Wright was a trespasser because U.S. Highway 231 had not been officially opened to the public. The evidence reveals that the public was using the highway. Wright had traveled the same route the previous night.

In view of the foregoing conclusions, the trial court properly directed a verdict in favor of the railroad.

The judgment is affirmed.

All concur.


text:
    Leonard Paul LITTLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.
    Jack Emory Farley, Public Defender, Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William W. Pollard, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Leonard Paul Little was convicted on a charge of committing robbery in the first degree. The indictment charges that Little, while robbing the Redwine Shop on or about the 10th day of September, 1975, “was armed with a deadly weapon, towit: a shotgun,” and that Little threatened, “the immediate use of physical force upon Hattie Redwine with the intent to accomplish the theft.”

The trial court instructed the jury on robbery in the first degree and reasonable doubt. The jury found Leonard guilty of first degree robbery and fixed his punishment at confinement in the penitentiary for 20 years. The trial court imposed sentence in conformity with the jury’s verdict. Leonard prosecutes this appeal.

The sole issue presented on appeal is whether the trial court erred by not instructing the jury to find whether the shotgun used during the robbery was a “deadly weapon.” It is evident, as Leonard contends, the trial court ruled as a matter of law that the only instrument mentioned in the evidence, which was a shotgun, was a deadly weapon. Leonard asserts also that this action of the trial court deprived him of his constitutional right to a trial by jury and a right to due process of law.

The evidence reveals that on the night before the robbery Stella Miller, Leonard’s paramour, decided they would rob the Red-wine Shop in Jackson, Kentucky. Stella testified that after she and Leonard arrived in Jackson, she went into the store to see if anyone was there other than Hattie Red-wine. Stella further testified that after she determined that Hattie was alone she left the store and told Leonard. She also testified that Leonard put an orange hood over his head and went into the store with a sawed-off, double-barreled shotgun. Approximately 5 minutes later Leonard came out of the Redwine Store with a bag containing approximately $200.00. Two hours after the robbery Stella and Leonard took a bus to Indiana and stayed there about four days. They returned to Leonard’s home in Noctor, a small town in Breathitt County.

Hattie Redwine testified that she was “going on 75 years of age” and that she had a pretty serious heart condition. She also testified that on the morning of September 10, 1975, Stella came into her store and asked to look at some watches. After informing Stella that she had no watches Hattie testified that Stella then left the store. Hattie went to the back of the store and began to open the safe. As she turned around a person who she identified as Leonard was holding a sawed-off, double-barreled shotgun on her. He demanded that she put all the money from the safe into a bag, and took her into the back room and locked the door. She protested. Her heart was giving her trouble. She requested that she be permitted to get heart medicine from her purse. Leonard refused. Hattie testified that Leonard took over $300.00 and some of her personal effects. The testimony of other witnesses bolstered that of Stella and Hattie.

The trial court instructed the jury as follows:

“INSTRUCTION NO. I
“You will find the defendant guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following existed:
“A. That in this county and on or about the 10 day of September, 1975 and before the finding of the indictment herein he stole or took a sum of money from Hattie Redwine and the Redwine Shop, and
“B. That in the course of so doing and with intent to accomplish the theft he threatened the immediate use of physical force upon Hattie Redwine by pointing a shotgun at her,
“If you find the defendant guilty you will fix his punishment at confinement in the state penitentiary for not less than 10 nor more than 20 years.
“INSTRUCTION NO. II
“If you have a reasonable doubt of the defendant having been proven guilty you will find him not guilty.”

The instruction given by the court followed verbatim Palmore, Kentucky Instructions to Juries, Sec. 4.21 at pages 159 and 160.

The offense of robbery in the first degree is defined in KRS 515.020:

“(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
(a) Causes physical injury to any person who is not a participant in the crime; or
(b) Is armed with a deadly weapon; or
(c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.
(2) Robbery in the first degree is a Class B felony.”

The argument of Leonard’s counsel that the trial court should have submitted the question of whether or not a sawed-off, double-barreled shotgun is a deadly weapon stretches the bounds of credulity. It appears from counsel’s argument that in order for Leonard to have had a fair trial it would have been incumbent upon the trial court to have each of the jurors fire the shotgun to see if it was operable. To argue, as counsel for Leonard did, that there was no evidence to show that Leonard was armed with “a weapon from which a shot readily capable of producing death or other physical injuries may have been discharged” is refuted by the evidence.

On that September morn, when Hattie Redwine looked into the muzzle of the shotgun she had every reason to believe that it was a deadly weapon. Leonard’s demand for the money coupled with his action in pointing the gun at Hattie and receiving the money constitutes the offense with which he was charged, and which is succinctly described in KRS 515.020. Because the shotgun used by Leonard was named in the indictment it was unnecessary for the court to define the words “deadly weapon.” Whether the instrument used in the course of a robbery is or is not a deadly weapon is a matter to be determined by the court as a matter of law. There was no evidence that any weapon other than a sawed-off, double-barreled shotgun was used in this robbery. As a matter of law such an instrument is a “deadly weapon” as defined in KRS 500.080(4). There was no occasion for an instruction permitting the jury to determine whether a weapon defined by the statute as a “deadly weapon” was or was not such a weapon. Palmore, Kentucky Instructions to Juries, Sec. 2.11, pages 56 and 57.

Leonard’s counsel questions the correctness of this court’s decision in Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (Decision rendered September 17,1976). He contends that Kennedy represents an unconstitutional encroachment upon the power of the Legislature to specifically and definitively delineate the kinds of weapons which are “deadly” under the Penal Code. Be that as it may, this court’s opinion in Kennedy is the law in this Commonwealth. The court is of the opinion that appellate counsel for Leonard misconstrues Kennedy. This court stated in Merritt v. Commonwealth, Ky., 386 S.W.2d 727 (1965):

“We hold that within the context of this statute (KRS 433.140) any object that is intended by its user to convince the victim that it is a pistol or other deadly weapon and does so convince him is one.” (Emphasis added).

The effect of Kennedy is to construe the definition of “deadly weapon” under KRS 500.080(4) as including the words, “whether real or simulated,” in accordance with Merritt. The Commentary to the Penal Code indicates that the decision in Merritt was not to be affected by the provisions of the chapter defining robbery in its different degrees. KRS 515.020.

This court is of the opinion that the judgment should be and it is affirmed.

All concur.

      . The authorized term of imprisonment for more than 20 years. Class B felony is not less than 10 years nor


text:
    Opel CAUSEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 76-613.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.

      Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Opel Causey was tried for first degree rape, found guilty, and sentenced to 20 years’ imprisonment. He filed motion and grounds for a new trial. That motion was overruled. Opel appeals from the judgment and order denying the motion. His grounds for reversal are, (1) he was entitled to a directed verdict because the prosecution failed to establish the required corpus de-licti of the alleged rape, (2) that the prosecuting witness was not competent to testify because of her age, and (3) he was denied his constitutional right to present evidence that another person or persons might have been responsible for the condition of the prosecutrix.

Opel had been living with his sister Billie Jean Knight and her three children for about two or three months. On January 26, 1976, Billie Jean had given the children their baths and put them to bed. She and her daughter Linda went outside to talk to her nephew. She left the other children with Opel. On voir dire the victim, Opel’s niece, testified she was nine years of age, in the fourth grade, and made good grades. She knew Opel was her uncle, the brother of her mother.

When the niece went to sleep she was wearing night clothing consisting of pants and a shirt. When she awakened, her Uncle Opel was in bed with her and her pants were pulled down. Opel was also “touching and pushing” at the private parts of her body with the private parts of his body. She testified that Opel was “pushing his pee wee into her” when she awakened.

The niece kicked Opel. He got up and went to the bathroom. When he came out he took his own bed. The niece ran to the bathroom, “looked at herself down between her legs and it was bleeding.” She testified that “OpeFs thing.préssed'into 'hér ⅛ little teeny way, enough to make her bleed.” She was taken to the hospital and examined by a doctor. Billie Jean was so furious at her brother that she tried to shoot him with a .25 caliber pistol, which failed to fire. She ordered him to leave.

The doctor testified that he examined the victim and found “she had redness at both lavia (sic) and reddened areas around her urethra.” He also testified that the physical condition that he found upon her body was consistent with a male sexual organ seeking to force entry into her body. On cross-examination he testified that he found no lacerations on the body.

The fact of penetration may be proven by circumstances. Here, the positive statements of the victim were supported by her visible injuries. That, coupled with the fact that there was blood on her panties, was sufficient corroborative evidence of penetration necessary to constitute the offense. It is noted that when Billie Jean accosted her brother, “He came to his feet and started putting on his clothes and started saying he hadn’t done anything.” When he made that statement Billie Jean had not accused Opel.

It is the view of this court that the victim’s testimony, when considered in light of the medical evidence, and Opel’s spontaneous statement without accusation, was enough to create a submissible issue on the question of penetration. Trimble v. Commonwealth, Ky., 447 S.W.2d 348 (1969); Hale v. Commonwealth, 196 Ky. 44, 244 S.W. 78 (1922); Moseley v. Commonwealth, 206 Ky. 173, 266 S.W. 1048 (1924).

This court is of the opinion there is no merit in Opel’s argument that his niece was not competent to testify. Furthermore, Opel’s failure to object to the victim’s testimony constituted a waiver. A person who is offered as a witness is presumed to be competent to testify until the contrary is shown. The burden of showing incompetency is on the party objecting on that ground. Hence the error, if any, is not preserved for appellate review. Hale, supra.

This court is of the opinion that the trial court properly ruled that any testimony as to the prosecutrix having had boy friends be limited to the evening her bleeding, injury and bruises were sustained.

The trial court instructed the jury on the whole law of the case. He followed verbatim Palmore, Kentucky Instructions to Juries, A Revision of Stanley, Sec. 2.32, pgs. 89 and 90. The jury heard all of the evidence. It observed the demeanor of the witnesses. This court is not willing to substitute its judgment for that of a properly instructed jury.

The judgment is affirmed.

All concur.


author: PALMORE, Justice.

text:
    Randall ROBINSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.

      David Kaplan, Ray M. Clooney, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Raymond M. Larson, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Justice.

The question of most importance in this case is whether evidence procured under a search warrant should have been excluded because the affidavit pursuant to which the warrant was issued contained an erroneous statement of fact.

The affidavit was prepared by the Commonwealth’s Attorney for Henry County and executed by an officer of the Kentucky State Police. It stated, among other things, that the affiant had received from the Louisville Police Department and an unnamed informant advice to the effect that a large quantity of stolen property was in the appellant’s possession at his home in Henry County. The portion of the affidavit claimed to have been untrue is as follows: “Said informant having been proven reliable by having previously given the Louisville Police Department who has advised the affiant information leading to the arrest and conviction of persons for the commission of other crimes.”

As later disclosed, the informant mentioned in the affidavit had been an accomplice of the appellant in that the stealing and delivery of the property to the appellant’s home had been carried out by prearrangement between them. The accomplice became a principal witness against the appellant both in the preliminary hearing (examining trial) held by the Quarterly Court and in the circuit court trial. At the examining trial he testified that this was the first time he had ever acted as a police informant.

The fundamental purpose of requiring an affidavit in support of a search warrant is to protect persons and their property from searches that are not founded on probable cause. Though in some jurisdictions the determination of probable cause is not confined to the affidavit, from time immemorial it has been the rule in this state that it is. Bowen v. Commonwealth, 199 Ky. 400, 251 S.W. 625 (1923); Caslin v. Commonwealth, Ky., 491 S.W.2d 832, 834 (1973). We are not at all convinced that the rule is unsound.

It is likely that the alleged misstatement in the affidavit was an honest mistake. The officer who made it was not called to testify, nor was the Commonwealth’s Attorney who had prepared it. It appears from the face of the affidavit, however, that in the course of a thorough investigation of the case the officer had received a good deal of information from the Louisville Police Department. In due course, after gathering further details, he took his information to the Commonwealth’s Attorney, who paraphrased it in the form of an affidavit. It is not unnatural that in this process of telling and retelling, inaccuracies would develop. We do not say that there will never be an instance in which this court will hold a search warrant invalid by reason of a clear and deliberate perjury in the supporting affidavit, but we have no reason to suspect that this is such a case.

There is still another reason why the warrant should not have been quashed. The affidavit contained more than three legal-size pages of information. The officer’s cause for believing that the stolen property was on the appellant’s premises was not confined to what he had heard that the informant had told the Louisville police. Among other things disclosed by the affidavit, the place had been under surveillance, and the officer had seen “pictures of the stolen property in the barns and home above described,” etc. From a stem-to-stern reading of the affidavit it is our opinion that it would have provided probable cause for the warrant without the details attributed to the informant.

Appellant attacks the warrant on the further ground that the affidavit contained “hearsay on hearsay.” Whether the affidavit supporting a search warrant does or does not furnish probable cause need not be determined by rules of evidence designed for trials. ' The criterion is whether on the whole the affidavit shows reasonable grounds for believing that the property sought to be discovered is actually on the premises to be searched. Cf. Commonwealth v. Eilers, Ky., 503 S.W.2d 724, 726 (1974).

Appellant’s contention that the county judge who issued the warrant did so without reading it is not supported by the record. Testifying at a pretrial conference the judge said that he “looked at the affidavit” and questioned the affiant “along the lines of what the affidavit, what he had stated in the affidavit.” That he interrogated the police officer and also discussed the matter with the Commonwealth’s Attorney by telephone does not connote that he did not read the affidavit. He was never asked and did not say whether in fact he had read it. On the basis of this record we certainly cannot assume that he did not.

During the course of the Commonwealth’s closing address to the jury, the appellant objected to a comment relating to the strange reappearance of a stolen camera in the owner’s locked apartment. The objection was sustained, counsel requested an admonition, and the admonition was given. He did not move for any further relief and therefore is not in a position to claim that a mistrial should have been declared. Humphrey v. Commonwealth, Ky., 442 S.W.2d 599, 601 (1969). Other objections to remarks made by the prosecutor were not sufficiently preserved for review. Cf. Johnson v. Commonwealth, Ky., 505 S.W.2d 470, 471 (1974); Mahan v. Commonwealth, Ky., 286 S.W.2d 93, 94 (1956); May v. Commonwealth, 153 Ky. 141, 154 S.W. 1074, 1080 (1913).

Appellant is correct in contending that Russell v. Commonwealth, Ky., 403 S.W.2d 694, 696 (1966), holding that the thief is not an accomplice of the receiver of stolen goods, is not applicable to this case. On the other hand, it was held in Spencer v. Commonwealth, Ky., 467 S.W.2d 128, 130 (1971), and Sarver v. Commonwealth, Ky., 425 S.W.2d 565, 566 (1968), that discovery of the stolen property in the defendant’s possession is sufficient corroboration to obviate the necessity for an accomplice instruction.

The judgment is affirmed.

All concur.


text:
    COMMERCIAL UNION INSURANCE COMPANY, Appellant, v. Charles J. DELANEY and William G. Harrison, Appellees.
    Supreme Court of Kentucky.
    Feb. 18, 1977.
    Rehearing Denied June 10, 1977.
    C. Alex Rose, Curtis & Rose, Louisville, for appellant.
    F. Chris Gorman, Kenneth H. Baker, Louisville, for appellee, Charles J. Delaney.
    William A. Johnson, Taylorsville, Frank Yates, Jr., Louisville, for appellee, William G. Harrison.
   LUKOWSKY, Justice.

The question presented is whether an automobile liability insurer may contractually exclude a truck owned by the Commonwealth from the definition of “uninsured automobile” in a policy issued pursuant to the provisions of KRS 304.20-020. We answer the question in the affirmative.

Delaney suffered bodily injuries when the automobile he was driving collided with a truck owned by the Commonwealth. The truck was being driven by Harrison. It is not disputed that Harrison’s negligence caused the collision nor that he was acting within the scope of his employment by the Commonwealth. When Delaney discovered that Harrison did not have liability coverage he joined Commercial Union as a party defendant. Commercial Union was the automobile liability insurance carrier for both Delaney and his employer who was the owner of the automobile that Delaney was driving.

Commercial Union moved for a summary judgment dismissing Delaney’s claim because the uninsured motorist provisions of its policies provided:

“The term, ‘uninsured automobile’ shall not include: .
(3) An automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government, or an agency of any of the foregoing.”

The trial judge granted the motion and entered an appropriate summary judgment. The trial judge retired from active service and his successor set aside the summary judgment. Commercial Union appeals.

Delaney’s position is that KRS 304.20-020 requires uninsured motorist coverage for the protection of persons insured under the liability policy who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury and that the carrier may not restrict its obligation to furnish the broad, undefined coverage required by statute by definitions, limitations, terms and conditions in the contract. He relies on Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So.2d 301 (1973) which declared void, as against public policy and legislative intent, an identical exclusion under a statute identical to KRS 304.20-020(1). If our statute consisted, as does Alabama’s, of no more than subsection (1) and if we had not decided Allen v. West American Insurance Company, Ky., 467 S.W.2d 123 (1971), we might find his argument more persuasive.

In answering the question presented we cannot help but notice the opening words of KRS 304.20-020(2) which are:

“For the purpose of this coverage (uninsured motorist) the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include . . ..” (Emphasis supplied).

In Allen, supra, we said:

“In using the italicized language, the Legislature recognized that there would be ‘terms and conditions of such coverage’ to which the statute’s application would be subject. ... If the solons had intended that the UM provisions should become applicable ... regardless of the policy provisions, it is difficult to discern why the words ‘subject to the terms and conditions of such coverage’ were employed. What terms and what conditions are permissible?”

In adopting uninsured motorist coverage the Legislature did not specify what exclusions would be either valid or invalid. Had it so desired, the General Assembly easily could have included a list. Its failure to do so affords basis for the construction that the statute does not invalidate all exclusions but only those which are unreasonable.

The question then becomes whether the exclusion of government owned vehicles is reasonable. In Allen, supra, we upheld the household exclusion on the basis that it was reasonable to eliminate “overly friendly” lawsuits. See Orange v. State Farm Mutual Insurance Co., Ky., 443 S.W.2d 650 (1969). Taking into consideration the existence of the Federal Tort Claims Act, our Board of Claims Act and the abandonment of the doctrine of governmental immunity as it applies to municipal corporations, we are of the opinion that it is equally reasonable to leave a person in Delaney’s situation to seek direct compensation from the governmental entity involved rather than from his uninsured motorist carrier, even though that relief might not provide for trial by jury or damages as at common law.

If the doctrine of sovereign immunity was applicable or if Harrison was a thief or an unauthorized interloper or operating the truck without the scope of his employment another result might well be mandated. Downey v. MVAIC, 43 A.D.2d 168, 350 N.Y. S.2d 821, 829 (1973). But that is not this case.

Our view of the case is further fortified by the fact that in 1970 when the General Assembly passed KRS 304.20-020 and referred to “terms and conditions” the Standard Family Combination Automobile Policy, 1963, Revised, Part IV, Definitions, contained the exact exclusion that is in issue here. It is not unfair to assume that the Legislature knew of the terms of the standard policy and deliberately chose not to write them out of Kentucky contracts.

No doubt the underwriters fixed rates for the coverage based upon the exclusion and neither Delaney nor his employer paid for coverage beyond the exclusion. There is no claim that these policies are contracts of adhesion. Presumably persons who desire to be insured against possible injury from negligently operated governmental vehicles can obtain such coverage by paying a higher premium.

The judgment is reversed with directions to reenter the original summary judgment.

All concur.