*1 However, province of the it. it is
trial better Court write a court this testator
will Unless a deceased. clari- express
can sufficient his wishes with
ty effective, the de- make his intention uncertainty.
vise must be held void for Executor,
Futrеll v.
Futrell’s
may only
S.W.2d 232. We
construe
opinion
equities.
will
and not the
our
See also
For the stated the reasons
must be reversed. judgment with directions reversed opin- conformity one enter
ion. GREENWELL, Appellant Vincent
Thomas , v. Kentucky, Appellee.
COMMONWEALTH of Appeals Kentucky.
Court of
Sept. 26, 1958.
Rehearing Denied Dec. *2 Sullivan, Dorsey Sullivan,
Wm. L. & Henderson, appellant. for Atty. Gen., Ferguson, M. David B. Jo Gen., Sebree, Atty. Palmore, Asst. S. John Atty., Henderson, ap- pellee.
STANLEY, Commissioner. Greenwell, Appellant, Thomas Vincent jointly Joseph Eggler indicted with obtaining the crime of token the signature of writing, another to a the false forgery, making whereof offense his denounced KRS 434.050. On separate guilty trial Greenwell found imprisonment. years’ to five sentenced The court overruled the defendant’s mo- set aside the indictment tion to because dur- inquiry a machine or device reporter which re- transcribe the same. grand jury room Such a operated in the is an officer of the there- court of the witnesses sworn corded secrecy. legislature If recordings, had intended upon tape or discs. The *3 prohibit qualify оr of a recording use capable reproducing of which were device in grand jury it proceeding, would testimony audibly, possession of were in likely amended, indirectly, directly have or had attorney. None the Commonwealth’s 110of the Criminal Code. That it did not § any No “played before witness. been back” do. permitted of the оrder the use of court de7 dur- present
vice stenographer and no conclude, therefore, We of that the terms witnesses. the examination of the 28.435(1) apply. KRS do appellant that the record- maintains question come to the the use whether only un- ing machine used could secrecy of recording device violated the By 28.435(1). der the of KRS terms grand of the jury. any judge may “if he deems statute circuit necessary it the steno- to aid court and From it earliest times has been graphic reporter, require” such a de- policy in the law furtherance any proceeding vice “in a circuit be used justice proceedings grand shield the upon an cоurt.” But the use is conditioned juries public Secrecy scrutiny. is for “present official to take stenographer being protection good of the witnesses and the stenographic proceeding,” full notes of the persons names of innocent investigated but par- except approval “with of the not indicted inspire grand and is to ties, respective acting through their attor- jurors secrecy with a confidence of in the neys,” presence re- a stenographic discharge of their duties. is for the porter may dispensed be with. protection any benefit any or right person indicted is given unless such part grand jury A is a of the 43 a statute. 38 Grand § Juries control, judicial court and under so there notes; Am.Jur., Jury, and 24 Grand can grand be no doubt that a of the session 629, Frisby, Cf. Pritchett v. 112 66 S.W. a “proceeding is court.” circuit 513, Commonwealth, Ky. Alford v. applies The question is whether this statute prescribe 42 S.W.2d Our statutes jury. to reporting grand before only as above stated be officers says recording The statute of a present during of a wit the examination device is aid the “to court and the steno ness, and are all these nonmembers ex graphic reporter” permits and the services deliberating grand jury cluded while the is stenographer dispensed aof be present voting. or If when an outsider was parties, acting through indictment, consent “of thе their it acted on an ais respective attorneys.” provi ground setting The latter aside indictment. for §§ negatives 110, secrecy sion idea that the statute And 158(2), Code. apply proceeding upon jurors except prose before a enjoined intended Moreover, jury. swearing we have another cution false to contradict 113, relating specifically reporting statute evi the trial defendant. witness on of the by grand jury. dence heard Section use of a de Criminal Code. therefore, permits excep an vice, of the Criminal Code does under the not come re tion to the law that other than the statute. The same end of ban of cоunty testimony accomplish attorneys Commonwealth’s could be cording attorney and the witness under examination be the Commonwealth’s shall if either ed present attorney be grand jury examining county while the should skilled in pen pen charge, stenographer, an official notes with and take shorthand attorney, order own use. United States be cil for their Co., present Tobacco notes F. makes American defendants; and the West- were well known said United States District Court spurious relying an in- said Kentucky false ern District of held true and believing ticket and same to because quashed dictment was not correct, to and corporation steno- said was induced attorney made assistant district had sign after- did check graphic make and said bank *4 ain recording device The use of a devices, pro genious intentionally sought to prac inquiry an unorthodox procure money personal cure and did There tice and be commended. is not to property persons. the other One of from and em risk of unauthorized disclosure particular by obtaining doing means of so is rec the barrassment. We conceive use of Roberson, upon a signature writing. defendant, ord which could be unfair to a Kentucky Law, 994. We §§ present was but in case a use such regard being “forgery” word as used were rights defendant made and the writing statutе in that the the sense prejudiced. signed would not for the have been but fraud, complete rather than in the technical assigns grounds, appellant The six Therefore, of nec sense it is not word. required one of which he maintains essary that an indictment under the statute to be sustained. demurrer the indictment shall particulars describe whiсh are essen grounds Two of demurrer to of them are thus, forgery; a good tial indictment for to namely, to forgery, indictment failure writing length, need not be set forth at that a writing set and to state forth it its being sufficient that nature was upon drawn a check was bank which be described. substance of contents incorporated. The indictment is for 1226, 1003, р. p. Roberson, § § n different obtaining fraud, namely, of class 42(2); Com False Pretenses § by pretenses, than for money false rather 528, Ky. Scroggin, 60 S.W. monwealth specific charge is gery. KRS 434.050. The Lacey, Rep. 1338; Commonwealth v. Law statute, substantially language of Ky. 584, 165 S.W. sig namely, by false token the “obtaining fatally false contended the indictment is writing, the It is nature of another to a specifically it making forgery.” The because does not whereof would defective “weight which the accused knew charge the manner in indictment describes pre- ticket,” charged have been accomplished. It is that de which is to that was Joseph signature for the Eggler, with as an inducement Nicholas sented fendant check, spurious. Valley Soy upon in fact the Ohio the intent defraud indictment, Cooperative, corporation, think, we contain definite obtained does bean spurious corporation upon of char- signature knowledge charge of presented. $610.71, drawn of the instrument check for acter bank “in fact there had been Morgan, charges favor of Gordon as and in bank in truth named receipt soybeans and making check of said said payee, “the false of which no such token, by which facts forgery, presenting ticket was weight to. said corporation -spurious defendant.” weight a false well known to said were by allegations rеceipt were not purporting to evince the “facts” ticket clearly refer to the presentation from the but state- corporation said Gordon said 18,140 immediately preceding clause, pounds soybeans, Morgan ments namely, fact such re- in truth and fact there had been no that there whereas receipt sоybeans weight ticket ceipt of said in fact that the and said token, a false token.” weight ticket was which “a false facts up demurrer grounds by The other was drawn Eggler re- showing the by summarily disposed saying ceipt 18,140 pounds soybeans, with- by examination we find them be livered or for Morgan Gordon Mor- out ganfield during merit. period night. a brief one Upоn receipt the basis of that requisites laid The indictment meets the ticket, Cooperative’s signed officer check down It states the' the Criminal Code. $610.71, payable Morgan, it man- constituting acts the offense “in such was mailed him. ner un- as to enable a of common intended; and derstanding know what is to' time”, Morgan “part was a farmer аnd a certainty with such as enable degree of “part city time” fireman Morganfield. pronounce judgment court to on convic- employed Tie had to time time tion, the case.” according defendant, Greenwell, who farmed a 122, subd. certain” with 2. It is “direct and acreage as considerable owner lessee. respеct required by facts Morgan testified that he had not delivered *5 Therefore, properly the the court overruled any soybeans Cooperative to on the oc- demurrer to the indictment. signed casion had involved and not the weight bearing tickets his name as the argument The the defendant trucker. On this occasion and other acquit was entitled to directed verdict of occasions -Morgan Greenwell had told he requires tal evidence. a statement of the soybeans had sold or would his sell under testimony and big We have a of oral record time, op- name. At he said “he needed exhibits, for the trial about one hundred erating expenses” and indicated that the case range, took as is a wide often being sale his name was done to avoid prosecution where rests on circumstan Morgan his creditors. cashed the had tial evidence of covert and fraud. collusive given money check for to $610.71 We confine our statement the substance Greenwell. proof jury material which the reasonably could concluded the de have The Commonwealth other showed evi- guilty. fendant was Morgan dence that had not in fact been at Cooperative plant night but had Valley Soybean Cooperative, Ohio The duty department been on at fire in Mor- suggests, engaged in the as_its name was gаnfield. It also was shown that within storing selling purchasing, business weight receipts, the time on indicated County. soybeans vol- in Henderson Its hardly possible it could have been four 800,000- approximately ume of business was of grain loads could have been delivered year. Samples brought grain bushels night particular on the on which the load plant by growеr by truck or for a supposed to have been delivered. Cop- weighed. and the load were taken showing were weight ies a ticket Morgan innocently testified that had he signed by weigher and the trucker. participated in number of such transac- copy passed One on to the check period years. during tions of five He personnel and to writing authorized of- twenty-five weight receipts identified bear- signatures. their ficers The checks as, fact, having his name not customarily payee would be mailed However, signed by him. there were some grain had whose been delivered. The genuine transactions in which he had de- codefendant, Eggler, fendant’s Co- crоps. his own livered operative weighman. On the occasion evidence, said, particular we have transaction and at other was broad soybeans alone night scope. pattern he received at showed times It a consistent regular day gone operations by shift after had similar fraudulent the de- fendant, Greenwell, duty. weight that occasion weighman, off On ticket apparent Morgan’s proper admission when it only by Eggler, the use enlighten will to the accom- court that the evidence name, three other names of but the testify Mans- deliberations. persons. Eggler aid the in its did modating Ky. 488, 174 Commonwealth, field v. trial. on this 16; 22 Law S.W. C.J.S. fact Criminal Law 967. accomplish In order to were experiments otherwise admissible tamper necessary with weight, it was mere- defendant made in the absence of the stamp automatically scales, which would ly of the evidence goes weight office ticket sent to the weight on the admissibility. not to its necessary that appeared processing. this could show how the Commonwealth appellant that agree cannot with nothing when, fact, there was done conspiracy be- there was no evidence of qualified weighed. A witness being independent tes- Eggler tween him and experiment had conducted acts; hence, timony evidence Eggler’s (shown to been in the same cоn scales incompetent, there of his acts was pound placing a ten dition) testified which no corroborative accom on the balance bar would conspiracy found could have plat plish on the the same result as load had existed. photo enlarged The witness used an form. establish accurate, tends to Greenwell’s evidence shown have been graph, actually experiments to He claimed to have explain his innocence. his illustrate and *6 soy- sixty loads Cooperative in the jury. were fixtures delivered The scales 16,377 bushels, during beans, any large aggregating building were too event Com- up Evidence court room. the 1956 season. to have been set in the that satisfactorily showed very monwealth appellant submits this much have raised that Greenwell could not incompetent experiment and because the grain he cultivated. on the lands was not picture had been made when he proved clearly All of the evidence present, induced and the evidence participated defendant had in commit- codefendant, jury to that his believe upon Cooperative by ting fraud actual pound weight to Eggler, had used the ten Coopera- “token” means of and that no manipulate the scales when there was par- actually tive had suffered loss in the in fact done he had so evidence that charged good in- ticular transaction in a access to it. that he had even under dictment and submitted proper instructions. not claim that The witness did been used had in fact to effectu prejudicial error. was no find there His whole made ate the fraud. merely relating judgment is affirmed. it clear he was experiments result of made manner and charged have been used a machine MONTGOMERY, J., dissenting. the offense. The committing admission experiments resulting from of evidence MONTGOMERY, Judge (dissenting). out of court and not demonstrations Criminal respectfully dissent because presence is within the I
in the Code, provides in detail judge light in the Section trial discretion by given be- which the surrounding facts and circum method of all the preserved. jury shall be grand such evidence should be While fore stances. effect, provi- nullifies the opinion, in (Cf. Marcum v. This with caution Com received opens way 590, monwealth, 137), this section and S.W.2d sions by author- innocent investigated which are not it. devices the use of Code, con- by which were not Section 110 should not ized the Code adoption. The cast aside templated of an at of its unauthorized the time of Criminal device in violation thereof in violation should not be next innovation picture permitted. Code, be a motion Section 110 will attachment. with sound
camera lack of
My objection is directed
authority the Gen- for such devices. Until Assembly fit authorize such
eral sees
devices, prohib- they I should feel connection, As- the General
ited. Inc., PETTIT, Appellant, MITTS & which, sembly 28.435(1), enacted KRS has obviously, trial refers to a and, therefore, has jury proceeding COMPANY, Appellee. BURGER BREWING except it indi- place this case Appeals Kentucky. Court of Assembly was not cates the General Oct. a de- ready the usе of such to authorize grand jury. vice before a Rehearing Denied Dec. device is
The use of safeguards of Crimi-
surrounded required to stenographer is
nal Code. The for the faithful
qualify taking an oath such and
discharge the duties as known, disclose, or make di-
sworn “not to per-
rectly indirectly, any person or
sons, occurred, anything that was stated evidence, transpired,
given in bear- upon any investigation before case or addition, grand jury”! a correct transcript
and full taken
must be made. There are no safe-
guards surrounding the use of a record- prevent
ing device which would a full dis- any stranger might
closure to chance part it or a
being deleted. objection
There is the further that the of such device enables attorney deny per- grand jury
son indicted
procure copy stenographic rec-
ord, any part thereof. provisions of the Criminal Code with grand jury, powers
reference to the its duties, carefully drawn secrecy proceedings
insure the its accused, protection members, notes attorney liver same same to the district ward read the
Notes
[*]
[*] special government agent and a for the Its comprehensive. 434.050is KRS was in him. consultation with purpose punishment an of provide is to who, by in representation fender