James BROWN, Appellant, v. Bruce HOBLITZELL, Sheriff and Jailer of Jefferson County, Appellee.
Court of Appeals of Kentucky.
Nov. 16, 1956.
As Modified and Extended on Denial of Rehearing Dec. 13, 1957.
739
Jo M. Ferguson, Atty. Gen., Robert F. Matthews, Jr., Asst. Atty. Gen., Frankfort, Ky., A. Scott Hamilton, Commonwealth Atty. of Jefferson County, Charles W. Dobbins, County Atty. of Jefferson County, Oldham Clarke, Special Attorney for Jefferson County, Louisville, for appellee.
Louis Lusky, Louisville, for Civil Liberties Union, amicus curiae.
MONTGOMERY, Judge.
This is an appeal from a judgment deny-ing the appellant, James Brown, release
The response was that appellant was in appellee‘s custody, as jailer, under five com-mitments from the Jefferson Quarterly Court, dated November 19, 1953. No ques-tion is raised as to the form of the commit-ments 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 per-son who had no legal judicial authority or power; and (2) the petitioner was convict-ed 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 mini-mum fine instead of having the maximum penalty imposed in each case.
The second basis for attack on the judg-ments 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 ap-pellant in the Jefferson Quarterly Court. These were: 70806 1/2, manslaughter; 70806 and 70814 3/4,
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 drunken-ness, for their appearance on November 19, 1953. A list of the witnesses, includ-ing the two police officers making the ar-rest, is enclosed as a part of the record in that case.
A trial was had on November 19, 1953, without objection or request for continu-ance. Benjamin Shobe appeared as attor-ney for the defendant. The parties stipu-lated in the beginning “that Rosa Haury lost her life as a result of an accident in-volved 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 addi-tion to Rosa Haury, Anna Pfisterer, Eliza-beth Pfisterer, and Mrs. Anthony Miller were killed; others were injured. At the conclusion of the introduction of evidence by the Commonwealth, the attorney repre-senting appellant stated, “The defendant will not testify at this time.” Oral argu-ment 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 auto-mobile and had caused the accident. Re-ferring to the statute on negligent homicide by means of an automobile, the commis-sioner continued, “I am sure that the de-fendant 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 driv-ing. * * * One year on each case, and $500 fine for the drunken driving.”
This order was then entered:
“70813 1/2 Commonwealth vs. James Brown Viol. 435.025; 70813 3/4 Com-monwealth vs. James Brown Viol. 435.025; 70814 Commonwealth vs. James Brown Viol. 435.025; 70814 1/2 Commonwealth vs. James Brown Viol. 435.025.
“Came the defendant in person, the Court having heard the evidence, and being sufficiently advised, the defend-ant 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 (70814 3/4). Appellant, “upon evi-dence heard“, was adjudged guilty and fined $500 and $5.50 court costs. The man-slaughter 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 judgments. 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 peti-tion. for writ of habeas corpus is a collat-eral one. The petitioner must establish by the record of his trial that the judgment of confinement is void. Brown v. Com-monwealth, 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 de-mand 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.
Appellant contends that the proceeding was an examining trial on the felony charge, manslaughter; and that no sen-tence 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 insur-ance adjuster who settled this case by pay-ing 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
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 impar-tial 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
The position urged is that the trial com-missioner 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 constitu-tional adoption and statutory enactment, as necessity demanded.
The county court, as a constitutional tribunal, was first established in 1850.
It is interesting to note that the county court established in 1850 consisted of a presiding judge and two associate judges.
The quarterly court was established as a constitutional tribunal in 1891, to be pre-sided over by the judge of the county court.
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-1. Upon the re-enactment of this statute as
The statutes authorizing the appointment of a county judge pro tem,
In determining whether a con-flict exists between the statutes mentioned, resort must be had to the rules of statu-tory 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 inten-tions 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 Legisla-ture is presumed to take cognizance of the existing statutes and the condition of the law so that when the statute under con-sideration 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 juris-prudence. 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 sub-ject enacted at different times should be reconciled in the light of the existing stat-utes and Constitution. Cawood v. Cole-man, 294 Ky. 858, 172 S.W.2d 548; Bur-bank v. Sinclair Prairie Oil Co., 304 Ky. 833, 202 S.W.2d 420. If the conflict can-not be reconciled, the later statute controls. Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398.
In considering the development and es-tablishment 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 Con-stitution was adopted. The county court was established by statute before its cre-ation as a constitutional body. The quar-terly court followed the same pattern later. The need for additional personnel to as-sist in the proper functioning of the court was recognized by provision for associate judges of the county court, use of justices
When the trial commissioner stat-ute was first enacted, it obviously was to afford the county judges in the more popu-lous 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 multi-plicity 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 ad-ministrative duties of the county judge re-quired full-time attention. The Legisla-ture 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 pur-pose. The trial commissioner statute is broad in scope and enables the county judge to assign any judicial duty for per-formance by the commissioner. Consider-ing the volume of legal matters in the various courts over which the county judge of Jefferson County is authorized to preside, 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,
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 consti-tuted 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 de-sired. On appeal to the circuit court, the case, or cases, would have been tried de novo.
Judgment is affirmed.
Judges HOGG and SIMS dissent.
SIMS, Judge (dissenting).
I must register my dissent from the ma-jority opinion because I feel the conviction of the defendant and his confinement in jail were in disregard of standards of procedure that are the very essence of justice. I read-ily agree that the evidence submitted on the one pseudo trial established guilt of four felonies of voluntary manslaughter. Upon separate trials, held according to due proc-ess of law, the evidence would have war-ranted much severer punishment. As ex-pressed by Judge Cardozo in People v. Moran, 246 N.Y. 100, 158 N.E. 35, 37, “A criminal, however shocking his crime, is not to answer for it with the forfeiture of life or liberty till tried and convicted in con-formity with law.”
My dissent rests on four grounds, namely: (1) the warrants which formed the bases of the convictions were fatally defective; (2) the defendant was tried for only one of-fense but was adjudged guilty of five sep-arate offenses and is serving sentences on five convictions; (3) there is no authority in law for such an officer as a trial commis-sioner of a quarterly court; and (4) a judg-ment of guilt in the absence of a verdict by a jury must be rendered by a judge who heard the evidence in person and not through a proxy.
I.
To start with, the so-called warrants were no warrants at all. They were not issued as authority to arrest, for Brown was ar-rested at the scene of the automobile dis-aster. They were drawn and filed-as ac-cusations only. One warrant charged that Brown “has committed the offense of KRS.” That is all. Three warrants charged that he “has committed the offense of KRS 435.-025” and one, the “offense of KRS 189.-529.” The other warrants followed the same form. None of them named or de-scribed any offense, which is a condition precedent to validity prescribed by
II.
There was a form of trial on only one of these void warrants. There were judgments of conviction of five offenses and five max-imum penalties to be served cumulatively—a total of four years certainly and more than five years if the defendant is unable to pay the fine assessed in one of the cases. He has been in jail since November 19, 1953.
Assuming the pseudo trial was a real trial held under authority of law, it was only on the charge of negligently killing one person, and the penalty on that charge was satisfied two years ago. The record in the habeas corpus proceeding, other than the orders of the Quarterly Court showing merely the
The majority opinion refers to the opin-ion of the trial commissioner and his state-ment that he would “give the defendant a year in jail” on each charge of negligent homicide and fine of $500 for drunken driv-ing. That statement (on which the joint judgment was based) appears in the tran-script of the trial of the one case, namely, that for killing Rosa Haury. The part omit-ted from the quotation in the majority opin-ion, as shown by asterisks, is: “This is the only way we can stop what has been hap-pening in Jefferson County in the last two or three days, and particularly from the time of this accident. No matter what I give the man, it can‘t restore the lives of these peo-ple who have lost it by reason of his wanton negligence in driving an automobile on our highways while under the influence. One year on each case, and $500 fine for the drunken driving.”
Suppose there had been five indictments pending against Brown, based upon the au-tomobile wreck, and he had been regularly tried on one of them and it resulted in a verdict of guilty and the imposition of a penalty of one year in jail. Then, suppose the circuit judge had the clerk to enter judg-ments in the case tried and also four other judgments in the cases which had not been tried, and the defendant was committed to prison for the accumulating sentences of four years and 250 days. Would anyone have the temerity to contend that the four additional judgments for which there had been no trial were not void ab initio, or that the prisoner was not entitled to be relieved of the judgments by the ancient right of habeas corpus? The query answers itself. A lawyer appointed and serving “on the spur of the moment” opened not his mouth. How can it be reasonably maintained that in such a case the prisoner is estopped from ever afterward claiming the inalienable right of every citizen, high or low, and ir-respective of guilt or innocence, to be tried according to due process of law? That is a fundamental principle of justice deeply root-ed in the federal and state constitutions and in the traditions and consciences of our peo-ple. The court, in my opinion, ought not assume there was a waiver, as the majority indicates.
“It is as much a violation of due process to send an accused to prison following con-viction on a charge on which he was never tried as it would be to convict him upon a charge that was never made.” The Su-preme Court of the United States so spoke in a case where an information charged the accused with violating Section 2, and pos-sibly Section 1, of a certain Arkansas penal statute. The instructions authorized and the jury found the defendant guilty of vio-lating Section 2 and imposed a penalty of one year in prison. On appeal, the Arkan-sas Supreme Court found the evidence was not sufficient to sustain a conviction under that section of the statute but was sufficient to sustain a conviction under Section 1. On a writ of certiorari the United States Su-preme Court reversed the judgment and made the above statement in the course of its opinion. Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644.
Only a few months ago this court held the judgment void where a man was tried on a warrant charging the selling of beer to minors and at the conclusion of the evidence the justice of the peace rendered a judg-
III.
I cannot bring myself to agree with the interpretation of the statute which author-izes the appointment of a trial commissioner of the county court that the Legislature in-tended to authorize the appointment of a commissioner to conduct trials in the quar-terly court also. The statute does not au-thorize the appointment of a commissioner to assist the county judge in the perform-ance of all his duties. Chapter 25 of the Statute is captioned, “County (Probate), Quarterly and Justices’ Courts.” Each of these courts is a separate constitutional tribunal. The chapter has four divisions, one is headed “General Provisions” (Sec-tions 25.010 to 25.070, relating to all three courts); another “County Courts” (Sec-tions 25.110 to 25.300, relating to jurisdic-tion, terms, etc. of the county court exclu-sively); another, “Quarterly Court” (Sec-tions 25.410 to 25.510 relating to those courts); and the fourth, “Justices’ Court” (Sections 25.610 to 25.750 dealing with the same subjects in such courts).
The section which authorizes a county judge to appoint a trial commissioner,
But we need not quibble over this point, for the question of judicial power is much graver.
The Constitution in separate sections, 139 and 140, establishes the county courts and the quarterly courts as separate and independent tribunals. It merely provides that the judge of the county court shall also be the judge of the quarterly court. The Constitution, therefore, limits the two courts jointly to having one judge. A pro tem judge or a special judge of any court is a substitute judge to serve temporarily with all the authority of the regular judge. Such temporary judges cannot sit in judg-ment where the regular judge is available or qualified. Mattingly v. Commonwealth, 310 Ky. 561, 221 S.W.2d 82.
It may be well to take note of some of our previous cases which seem to be perti-nent.
The trial commissioner could not be re-garded as a de facto judge for there can be no de facto officer where there is no legal office or court nor where a judicial office is not recognized by the Constitution. Hildreth‘s Heirs v. McIntire‘s Devisee, 1 J.J.Mar. 206, 24 Ky. 206; 30 Am.Jur., Judges, § 100. Nor can there be a de facto judge where there is a de jure judge en-gaged in the actual performance of the duties of the office. 43 Am.Jur., Public Of-ficers, § 496; 48 C.J.S., Judges, § 2. In the present case, the trial commissioner did
This court has held that a pro tem judge of the county court may not take the place of the county judge at a session of the fiscal court even in his absence because it is a separate body, even, we may add, as is the quarterly court. Jefferson County Fis-cal Court v. Grauman, 281 Ky. 608, 136 S.W.2d 1102. In Martin v. Stumbo, 282 Ky. 793, 140 S.W.2d 405, (a civil case de-cided before the Act of 1942 authorizing the appointment of a quarterly judge pro tem) it was held that a county judge pro tem (an officer who was authorized) could not act as a quarterly court judge pro tem. But as there was a statutory authority for a special quarterly court judge, the court regarded the so-called pro tem judge as a special judge irregularly appointed or se-lected; hence, he was acting in good faith under color of authority and was a de facto judge, which fact saved the civil judgment from being void.
In Helton v. Commonwealth, Ky., 256 S.W.2d 14, 16, a special circuit judge who had been commissioned to try a criminal case was held to have no authority to pre-side at a second trial, and the judgment was reversed on that ground. The court held that a person charged with crime is entitled to be tried in a lawfully constituted court which “includes a presiding judge, duly elected or appointed according to law.”
By analogy, these cases hold that a coun-ty court trial commissioner cannot act as a quarterly court trial commissioner.
IV.
I now come to the most crucial objection to the majority decision. It is the ap-proval of a system which, in my opinion, is subversive of the fundamental principles of the administration of justice. The de-cision approves a trial and condemnation of a citizen (a) by a person acting without legal, judicial authority as a judge who finds the facts, applies the law, fixes the penalty, and commits the defendant to pris-on, or (b) by a duly authorized court act-ing by proxy through such unauthorized person.
Judicial power is vested exclusively by our Constitution in the courts established by it and none other. Section 135. The Legislature may not vest judicial power elsewhere nor create judicial offices nor divide the duties of those officers. 21 C.J.S., Courts, § 122.
There can be no court without a judge. His presence to conduct the trial is essential unless temporary absence is consented to. This court, like all courts, has held a trial judge should under no circumstances absent himself from the bench without postponing the trial, for to constitute a court, there must be a judge possessed of certain quali-fications; and it is not enough for the court to call a member of the bar to sit in his place. Wheeler v. Commonwealth, 120 Ky. 697, 87 S.W. 1106; May v. Commonwealth, 153 Ky. 141, 154 S.W. 1074; Mills v. Com-monwealth, 240 Ky. 359, 42 S.W.2d 505. See for full consideration, Ellerbee v. State, 75 Miss. 522, 22 So. 950, 41 L.R.A. 569.
A judicial officer must exercise power in person. Litigants, especially those ac-cused of crime, have the right to have their cases tried by a court held by a judge duly chosen to discharge judicial functions. A judge may not delegate judicial authority or the performance of judicial acts to an-other person, even with the consent of the parties. There can be no such thing as a deputy judge. 11 Am.Jur., Constitutional Law, § 201; 30 Am.Jur., Judges, § 31; 48 C.J.S., Judges, § 45; 16 C.J.S., Constitu-tional Law, § 166.
A citizen charged with crime has the con-stitutional right to have the judge who tries and condemns him see the witnesses face to face and hear their testimony in person. Trial by proxy is abhorrent to my conception of judicial procedure just as marriage by proxy shocks my concep-tion of morality.
V.
The claim of necessity for such so-called courts because of the volume of work and the impossibility of one judge doing all of it cannot justify the system. The response to this claim is to point to the courts of justices of the peace established by the Constitution and vested by the Legislature with the same powers and jurisdiction as the county courts and the quarterly courts. There are several such justices in Jefferson County, elected by the people and paid sal-aries instead of receiving fees dependent upon the conviction of persons charged with criminal offenses.
VI.
Finally, I may take notice of the impli-cations of waiver contained in the majority opinion.
It is the general rule, observed particu-larly in the federal courts, that a judgment rendered against an accused person without due process of law is void; but this court has intimated that habeas corpus does not lie merely because due process has been denied. I emphasize that these intimations must be limited to errors of practice or pro-cedure for which there is a right of appeal, or in a few instances of little consequence. These intimations cannot apply to the ab-solute denial of a trial and conviction which were not according to the fundamental and constitutional processes. We have recently held that justices of the peace who receive compensation only in cases of conviction have no jurisdiction to try criminal cases and the defendant‘s failure to object cannot confer jurisdiction. Roberts v. Noel, Ky., 296 S.W.2d 745.
The present case concerns questions that go to the constitutional existence of a ju-dicial tribunal, and the majority opinion ap-proves the exercise of judicial power by proxy—not merely to the failure to ob-serve collateral or incidental rights of the accused. The proceeding, in my opinion, was void from start to finish, hence, the appellant was entitled to have the circuit court so adjudge on the habeas corpus writ.
I close this dissent with the words of Justice Whitfield in Ellerbe v. State, 75 Miss. 522, 22 So. 950, 952, 41 L.R.A. 569, 574:
“Disregard of fundamental right in the case of the guiltiest defendant, his conviction in violation of settled con-stitutional and legal safeguards, in-tended for the protection of all, are not things ‘which affect the particular
defendant in a given case alone, but, in their disastrous and far reaching consequences, involve, in future trials, the innocent and guilty alike, subvert justice, and disorganize society. Guilt should be punished certainly, and con-dignly, most assuredly; but guilt must be manifested in accordance with the law of the land. Else some day the innocent, who are sometimes called to answer at the bar of their country, may come to find themselves involved in a common ruin, deprived of the legal trial necessary to the vindication of their innocence.”
I am authorized to say Judge HOGG concurs in the dissent.