Brown v. Hoblitzell

307 S.W.2d 739

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: December 13, 1957
• Status: Published

Opinions

MONTGOMERY, Judge.

This is an appeal from a judgment denying the appellant, James Brown, release from the Jefferson County jail on a writ of habeas corpus.

The response was that appellant was in appellee’s custody, as jailer, under five commitments from the Jefferson Quarterly Court, dated November 19, 1953. No question is raised as to the form of the commitments or whether they were issued on the judgments described later.

It is urged that the judgments are void because: (1) they were rendered by a person who had no legal judicial authority or power; and (2) the petitioner was convicted on five charges but was tried on only one; he was deprived of the right of trial by jury; and in the absence of the jury trial, he should have been sentenced only for the minimum term or to pay the minimum fine instead of having the maximum penalty imposed in each case.

The second basis for attack on the judgments will be considered first.

On October 25, 1953, appellant, while operating a motor vehicle on U. S. 42 near Louisville, was involved in an auto collision in which four women were killed. Other persons were injured. Appellant was arrested at the scene of the accident.

Eight charges were placed against appellant in the Jefferson Quarterly Court. These were: 70806½, manslaughter; 70806 and 70814¾, KRS 189.250 (drunken driving); 70813, public drunkenness; 70813½, 70813¾, 70814, and 70814½, KRS 435.025 (negligent homicide by auto). Cases 70806 and 70806½ were continued on October 26', 1953, to November 2, 1953. On the following day, the other six charges were continued to November 2, 1953.

The eight cases were continued again to November 19, 1953. Six subpoenas for six witnesses were issued on November 2, 1953, in 70813, charging public drunkenness, for their appearance on November 19, 1953. A list of the witnesses, including the two police officers making the arrest, is enclosed as a part of the record in that case.

A trial was had on November 19,- 1953, without objection or request for continuance. Benjamin Shobe appeared as attorney for the defendant. The parties stipulated in the beginning “that Rosa Haury lost her life as a result of an accident ’involved in this case”. Witnesses testified that four automobiles were involved in the collision. The appellant was very drunk and his gross negligence in driving one of the cars had caused the accident.- In addition to Rosa Haury, Anna Pfisterer, Elizabeth Pfisterer, and Mrs. Anthony Miller were killed; others were injured. At the conclusion of the introduction of evidence by the Commonwealth, the attorney representing appellant stated, “The defendant will not testify at this time.” Oral argument was made by counsel for each side.

Then, the trial commissioner expressed appreciation of Mr. Shobe, an attorney, for representing the defendant “on the spur of the moment”, and stated his opinion that Brown was drunk while driving his -automobile and had caused the accident. Referring to the statute on negligent homicide by means of an automobile, the commissioner continued, “I am sure that the defendant is going to appeal my decision, but I am going to give him a year in jail on each one and a $500 fine on drunken driving. * * * One year on each case, and $500 fine for the drunken driving.”

This order was then entered:

“70813½ Commonwealth vs. James Brown Viol. 435.025; 70813¾ Commonwealth vs. James Brown Viol. 435.025; 70814 Commonwealth vs. James Brown Viol. 435.025; 70814½ Commonwealth vs. James Brown Viol. 435.025;

“Came the defendant in person, the Court having heard the evidence, and being sufficiently advised, the defendant being adjudged guilty, it is ordered by the Court that the defendant is to be confined to- the Jefferson County Jail for a period of one (1) year on each of the above actions, making a total of four (4) years in jail to be served.”

The public drunkenness charge (70813) and drunken driving charge (70806) were consolidated with the other drunken driving charge (70814¾). Appellant, “upon evidence heard”, was adjudged guilty and fined $500 and $5.50 court costs. The manslaughter charge was “filed away”. It does not appear when this last order was made with reference to the time of the trial.

The commitments were issued on these judgment's. 'The order book containing the entries of November 19, 1953, is signed:

“Thomas H. Young

Special Trial Commissioner

“M.’ O. Henchey

Trial Commissioner

“Boman L. Shamburger Judge”

Appellant made no objection whatever to the trial commissioner’s conclusions that he was guilty of five charges or to the entering of five judgments thereon. He did not appeal.

In the habeas corpus proceeding, the lower court concluded that the “petitioner had a fair and impartial trial”, the facts justified his conviction, and there was no arbitrary action on the part of the quarterly court commissioner, who was a de facto judge; hence, the judgments were not void.

An attack on a judgment by petition. .for writ of habeas corpus is a collateral one. The petitioner must establish by the record of his trial that the judgment of confinement is void. Brown v. Commonwealth, Ky., 243 S.W.2d 885; Owen v. Commonwealth, Ky., 280 S.W.2d 524.

The Jefferson Quarterly Court had’ jurisdiction of the person and of the offenses charged. The appellant made no objection to.the proceeding. He made no demand for a jury trial. Failure to demand a jury trial waives the right to it. Garner v. Shouse, 292 Ky. 798, 168 S.W.2d 42; Williams v. Pierson, 301 Ky. 302, 191 S.W.2d 574. It is error for the court to impose more than the minimum penalty on a plea of guilty without the defendant having had the advice of counsel. Criminal Code Section 258; KRS 431.130; Parsley v. Commonwealth, Ky., 272 S.W.2d 326. There is no such error here. The appellant was acting with advice oí counsel. Lee v. Buchanan, Ky., 264 S.W,2d 661. While the record in this case is silent as to whether the appellant pleaded “not guilty ”, that plea is implicit in the fact that evidence was heard on the question of his guilt. Meece v. Commonwealth, 78 Ky. 586, 1 Ky.Law Rep. 337; Dabney v. Commonwealth, 226 Ky. 119, 10 S.W.2d 612. Error in consolidating several charges or warrants for trial is not reviewable on habeas corpus. 39 C.J.S., Habeas Corpus, §21, p. 469, note (1).

Appellant contends that the proceeding was an examining trial on the felony charge, manslaughter; and that no sentence could be imposed. The caption of the stenographer’s transcript of the trial had “No. 70814” typed underneath “Jefferson Quarterly Court”. At the habeas corpus hearing, appellant’s counsel identified the copy of the transcript of evidence at the trial in the following words: “It’s been borrowed from Temple Lewis, the insurance adjuster who settled this case by paying all of the damages which the insuror (sic), Elizabeth Pfeister (sic) was liable for.” This statement, together with the stipulation as to the death of Rosa Haury and the designation of the transcript by the number of the negligent homicide case in which her death was involved, serve to indicate that the adjuster had procured the transcript for use in the investigation of a claim against the estate of Elizabeth Pfisterer, also killed in the accident.

There is no merit in the contention that the proceeding was an examining trial on the charge of manslaughter rather than a final trial on the five charges in which judgments were rendered. From the record before us, it is apparent that the appointed counsel was very capable and performed his duty well, as was pointed out at the conclusion of the trial by the trial commissioner. In his brief, appellant’s present counsel admits the competency of the attorney. The record shows that Mr. Shobe cross-examined the prosecution witnesses with vigor and skill. He argued the case at the close of the testimony. When the determination of the guilt and punishment was made, it is hard to believe that such an able defense counsel would have failed to make some objection or demand some explanation if he had gone through the trial thinking it was an examining trial instead of a final trial on the merits. The failure to object under such circumstances is very persuasive of the view that it was not an examining trial. The continuances in the eight cases, their final disposition on the same day, and the issuance of process for witnesses in the public drunkenness case are also inconsistent with the view that the hearing was an examining trial on the felony charge. While the record is silent as to any agreement to hear the five charges together, all of the attendant circumstances indicate such an agreement. The statement of the trial commissioner that he expected the decision to be appealed is uncontradicted and clearly indicates that he considered the hearing to be a final trial rather than an examining trial.

The appellant had five serious charges against him. The evidence introduced at the hearing indicates that four felony charges might well have been placed against him. From the record, it is apparent that he was fortunate to have escaped more severe punishment. The conclusions of the lower court that appellant “had a fair and impartial trial” and that the facts justified his convictions are sound.

The remaining contention of appellant is that he was convicted when the quarterly court was not in session and neither the county judge, the judge pro tem, nor a special judge was present. He was tried before-a trial commissioner appointed by the county judge under the provisions of KRS 25.280. No question is raised as to the validity of the appointment. Appellant questions the right of a trial commissioner appointed pursuant to KRS 25.280 to-hear and determine cases in the quarterly court in view of KRS 25.450 and KRS 25.460, providing for the county judge, county judge pro tem, or special judge as presiding officer of that court.

The position urged is that the trial commissioner was a usurper and was not legally authorized to serve on a trial of criminal prosecutions in quarterly court. It is argued that there was no statutory provision for a trial commissioner of the quarterly court, but if there had been, then his action would have been a nullity since a judge of a court may not delegate his judicial duties or functions, or vest a commissioner with judicial power, and further that each person accused of crime has the constitutional right to be tried by a court or a judge who hears the evidence and not by a court or judge acting by or through a proxy.

Our court system has evolved through the years since the beginning of statehood. The development has been by constitutional adoption and statutory enactment,, as necessity demanded.

The county court, as a constitutional tribunal, was first established in 1850. Kentucky Constitution 1850, Article IV, § 29. Prior to 1850, the judicial power was vested in one supreme court and “in such inferior courts as the legislature may from time to time ordain and establish.” Kentucky Constitution 1792, Article V, § 1 ; Kentucky Constitution 1799, Article IV, § 1. Previously, county court appears to have been recognized as one of the inferior courts. Kentucky Constitution 1850, Article IV, § 33.

It is interesting to note that the county court established in 1850 consisted of a presiding judge and two associate judges. It was' provided that the General Assembly might abolish the office of associate judges, “in which event they may associate with said’ court any or all of the justices of the peace for the transaction of business.” Kentucky Constitution 1850, Article IV, § 29.

The quarterly court was established as a constitutional tribunal in Í891, to be presided over by the judge of the county court. Kentucky Constitution 1891, § 139. Reference has been found to an earlier court of quarter terms, án inferior court, authorized by statute. In the same Constitution, Section 140 provides for a county court to consist of a judge who shall be a conservator of the peace.

The appointment of a trial commissioner by the judge of the county court “to discharge such judicial duties as may be assigned” was first authorized in 1926. Carroll’s Kentucky Statutes, 1930 Edition, Section 1077b-l. Upon the re-enactment of this statute as KRS 25.280 in 1942, the authority was enlarged to appoint a trial commissioner, or commissioners.

The statutes authorizing the appointment of a county judge pro tern, KRS 25.140; providing that such officer may preside over the quarterly court, KRS 25.450 ; and authorizing the appointment of a special judge of the quarterly court, KRS 25,460; were all enacted prior to enactment of KRS 25.280, authorizing the trial commissioner. Carroll’s Kentucky Statutes, 6th Edition, 1922, §§ 1056 and 1059.

In determining whether a conflict exists between the statutes mentioned, resort must be had to the rules of statutory construction, which is a function of the Court. Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815. The exercise of this duty must bring about a practical result. Gillis v. Anderson, 256 Ky. 472, 76 S.W.2d 279. A fundamental rule of construction is that the applicability and scope of the statute may be determined by ascertaining the Legislature’s intent and purpose, considering the evil the law was intended to remedy and other prior and contemporaneous facts and circumstances that throw intelligible light on the intentions of the law-making body. Sewell v. Bennett, 187 Ky. 626, 220 S.W. 517; Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262, 130 S.W.2d 756; Swift v. Southeastern Greyhound Lines, 294 Ky. 137, 171 S.W.2d 49; Kelly v. Marr, 299 Ky. 447, 185 S.W.2d 945; City of Louisville v. Helman, Ky., 253 S.W.2d 598.

In enacting laws, the Legislature is presumed to take cognizance of the existing statutes and the condition of the law so that when the statute under consideration is ambiguous, the new enactment is to be construed in connection and in harmony with the existing laws as a part of a general and uniform system of jurisprudence. Button v. Hikes, 296 Ky. 163, 176 S.W.2d 112, 150 A.L.R. 779; Reynolds Metal Co. v. Glass, 302 Ky. 622, 195 S.W.2d 280. Apparent conflicts or repugnancies between statutes on the same general subject enacted at different times should be reconciled in the light of the existing statutes and Constitution. Cawood v. Coleman, 294 Ky. 858, 172 S.W.2d 548; Burbank v. Sinclair Prairie Oil Co., 304 Ky. 833, 202 S.W.2d 420. If the conflict cannot be reconciled, the later statute controls. Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398.

In considering the development and establishment of inferior courts by statutory and constitutional means, it is readily seen that the need for such courts has given rise to their creation. This development has been continuous since the first Constitution was adopted. The county court was established by statute before its creation as a constitutional body. The quarterly court followed the same pattern later. The need for additional personnel to assist in the proper functioning of the court was recognized by provision for associate judges of the county court, use of justices of the peace, county judge pro tem, and special judge. One solution by the courts of this state at all levels of the judicial system has been the use of commissioners authorized by statutes. See KRS 21.150, Commissioners, Court of Appeals; Heydrick v. Dickey, 155 Ky. 222, 159 S.W. 666; KRS 27.040 and KRS 27.050, Master and Special Commissioners, Circuit Court. See Kentucky Constitution Section 246 for a belated recognition of the Commissioners of this Court. The use of a special commissioner to assist the county judge in making fiduciary settlements was authorized. Carroll’s Kentucky Statutes, 6th Edition, 1922, § 1062; The commissioner in each instance is responsible to the judge or court making the appointment for the performance of assigned duties. The same is true of the trial commissioner.

When the trial commissioner statute was first enacted, it obviously was to afford the county judges in the more populous counties of the state some relief in the performance of their judicial duties. The continuing greater need was again recognized in 1942 when the statute was re-enacted and provided for more than one commissioner. Both in 1926 and 1942, when the growth, complexity, and multiplicity of litigation in the more populous counties were considered, the need for more personnel to assist in the performance of the judicial duties of the county judge was apparent. In some instances, the administrative duties of the county judge required full-time attention. The Legislature evidently realized the situation and must have intended the enactment of the trial commissioner statute as a remedy in addition to the remedies already afforded by the judge pro tem and special judge statutes, each of which has a specific purpose. The trial commissioner statute is broad in scope and enables the county judge to assign any judicial duty for performance by the commissioner. Considering the volume of legal matters in the various courts over which the county judge of Jefferson County is authorized to pre-side, it is humanly impossible for the county judge, judge, pro tem, and special judge to handle them. It, therefore, is concluded that the trial commissioner statute was enacted by the Legislature with cognizance of the existing statutes and to remedy a specific situation, and as such, it is supple: mentary to the judge pro tem and special judge statutes, rather than in conflict with them. Insofar as the previous existing statutes, ICRS 25.450 and KRS 25.460, may be construed as mandatory by reason .of the use of the word “shall”, -they are considered as having been amended by KRS 25.280, and the use of the word “shall” has become directory in order to effectuate the intended purpose of the Legislature. Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884.

The trial presided over by the trial commissioner was held in the exercise of proper judicial authority as one of the judicial duties assigned by the county judge. The judgments upon which the commitments were issued were signed by the trial commissioner and county judge. The approval by the county judge’ constituted his acceptance of responsibility for the acts of the trial commissioner.

Finally, the appellant should have exhausted his remedy by appeal. Each of the errors complained of by him could have been reviewed on an appeal from the Jefferson County Quarterly Court to the Jefferson Circuit Court and by a subsequent appeal to this Court, if desired. On appeal to the circuit court, the case, or cases, would have been tried de novo. Criminal Code of Practice, Sections 362 and 366. The appeal and new trial would have eliminated any question with reference to the lack of judicial authority or power in the presiding, judge. Likewise, the complaint of trial on multiple charges without a jury, and of imposition of punishment in excess .of the minim,urn would have been eliminated. On the de novo trial, appellant could have requested and obtained -separate trials by jury on each charge. The jury would have fixed the punishment in each case upon a verdict of guilty. The trial would have been presided over by the circuit court judge. Even had the appellant pleaded guilty on each of the charges complained of in the quarterly court, he could still have appealed. A judgment entered on a plea of guilty in the quarterly court is appealable and is triable de novo in the circuit court. Holtman v. Commonwealth, 129 Ky. 710, 112 S.W. 851; Williams v. Commonwealth, 307 Ky. 37, 209 S.W.2d 477. By the present proceeding, appellant is attempting to secure the relief that was available to him by an appeal which he did not take.

Judgment is affirmed.

Judges HOGG and SIMS dissent.