110 Ky. 516 | Ky. Ct. App. | 1901
Opinion of the court by
Reversing.
Appellant was indicted and convicted under section 1170, Kentucky Statutes, for “willfully, maliciously, and unlawfully burning a dwelling* bouse occupied as a residence.” When tbe case was called for trial, appellant was pres
Taking up the grounds in the order stated:
1. The Constitution and laws of this State guaranty to any person accused of crime the right to a public trial, and the right to be confronted by the witnesses appearing against him. Section 11, Constitution; section 183, Criminal Code Practice. This means that no man can be deprived of his liberty by judgment of a court unless by a public trial, and unless the witnesses accusing him appeared in person at the trial, -at which he could and should also be present. This much the laws of the land guaranty to him, but they do not go further to allow him to voluntarily and unlawfully absent himself from the trial after it has regularly and legally' begun, and then, for such absence, allow the claim that his constitutional privileges have been ignored or abridged by the court. If he has suffered the lack of enjoyment of the constitutional right of being confronted by his- witnesses, it is because be himself refused to be so confronted. There was neither failure of due provision of legal opportunity nor of fair privilege afforded by the court for the defendant to meet his accusers face to face at the trial. Every step required by a regardful observance of these ancient and invaluable guaranties of fair trials was duly and fairly taken by the court’s officers. The accused, by personally, voluntarily, and unlawfully abandoning the trial, deprived himself of whatever value the privilege of personal presence would have been to him. The trial having begun when the jury was sworn (Williams v. Com., 78 Ky., 93; Gaskins v. Com.,
2. There is nothing in the record showing that a' demurrer to the indictment was filed, or acted on by the court. Therefore the refusal of the court to enter an order mme pro Pune showing- those facts, if they were facts, was proper. Nunc pro Pane orders can only be entered when based upon and sustained by facts shown of record. Boyd Co. v. Ross, 95 Ky., 167; 15 R., 520 (25 S. W., 8); Bennett v. Tierney, 78 Ky., 580.
3. The motion in arrest of judgment is based upon the assumption that the indictment fails to state a public offense. The language of the indictment is: “The grand jury of Letcher county, in the name and by the authority of the Commonwealth of Kentucky, accuse Isom Collier and William Wells of the crime of unlawfully, willfully, and maliciously burning a dwelling house occupied as a residence by another person, committed as follows, to-wit: The said Isom Collier and Wm. Wells, on the 28th day of November, 1898, in the county and State aforesaid, did unlawfully, willfully, and maliciously burn a dwelling house, the property of Stephen Wells, occupied as a residence by Polly Ann Lay, against the peace and dignity,” etc. Section 1170, Kentucky Statutes, under which this indictment was drawn, is: “If any person shall willfully, maliciously and unlawfully burn any dwelling house which is occupied as a residence. ... he shall be punished by confinement in the penitentiary for not less than ten or more thán twenty years,” etc. The indictment follows the language of the statute, and that we have frequently held is sufficient particularity. It is complained that the word “felonious” is not used in the accusative part of the indictment. In construing- this same section
4. Section 281 of our Criminál Code of Practice gives to the trial court an unreviewable discretion in acting on motions and grounds for new trials' in criminal cases, A defendant contacted of crime is entitled to file his motion and grounds for a new trial at any time before final judg-. ment, and has the right to have that motion and the grounds therein passed upon by the trial court. It is not enough that this court may consider the grounds insufficient. The Legislature has not seen fit to give this court the right to pass on that question. It may appear idle in this case to remand the cause for the sole purpose of requiring the circuit judge to pass upon this motion and the grounds, therein mentioned, in Anew of the court’s action in declining to consider the grounds, or suffer them to be filed. It would appear that the action of the lower court just recited was equiA’alent to overruling the motion. It may be so in effect. Nor do we intend to intimate that the lower .court should have done otherwise, nor, indeed, to indicate our opinion at all on the subject, it being a matter peculiarly and solely in the discretion of that tribunal. But we do mean to say that it is, and may well be, regarded as a substantial right of one accused to have such motion filed and passed on by the trial court, and we can not approA’e a practice that would abridge that right. For the reasons indicated, the judgment is reversed, and cause remanded, with directions to the circuit court to set aside the judgment, to allow the motion and grounds and affidavits in support thereof to be filed, to be acted on by the cir