124 Ky. 115 | Ky. Ct. App. | 1906
Opinion by
Affirming.
The appellant, Ben Huffaker, was serving a life sentence in the penitentiary at Eddyville, Ky., for tlie crime of murder, committed in Pulaski county. On the 2d day of May, 1905, with a knife he stabbed a fellow convict, B. Sherley, to death. For this offense he was indicted by the grand jury of Lyon county, and afterwards tried and convicted of the crime of willful murder, the penalty of death being inflicted by the verdict of the jury. Prom the judgment based upon this verdict, he is here on- appeal.
It is not disputed that the evidence adduced upon the trial overwhelmingly established the appellant’s guilt of the offense with which he stood charged; but it is complained that the court erred in refusing to allow the affidavit filed by him for a continuance to be read as evidence upon the trial of the case. In this affidavit the defendant set forth that he was not ready for trial, and desired a continuance because of the absence of a witness who would testify to certain
It is insisted by counsel that, inasmuch as the defendant was already under a life sentence by the judgment of one court of -competent jurisdiction, he could not be tried or punished for any other crime, as to do so would annul the former judgment. The best that can be said' for this proposition is that it does credit to the ingenuity of the learned counsel who were appointed by the court to defend' the accused. It'is, however, as a legal proposition wholly untenable. If it were sound, it would result that a prisoner serving a life sentence could murder every one in the penitentiary without being amenable to the law. No authority is produced, or, in our opinion, can be produced, to uphold so monstrous a conclusion, and it carries with it its own refutation. On the other hand abundant authority can be cited to uphold the judgment of the trial court. In the case of People v. Majors, 65 Cal., 138, 3 Pac., 597, 52 Am. Rep.., 295, it is said: “A person may be tried for murder, though he is at the time under sentence of life imprisonment for another offense.” In the case of Brown v. State (Tex. Cr. App.), 95 S. W., 1039, the Supreme Court of Texas said, on the question before us: “We have not been cited to any authority,nor are we aware of any provision of law, statutory or otherwise, that would prevent the trial and conviction of a convict for homicide, or for any other offense committed while he was detained as a prisoner by virtue of a prior conviction. It would take a very-strong reason or authority, or an express statute, to show that the person confined in the penitentiary could not be tried and punished for the homicide of one of his fellow convicts.” To the same effect is Kennedy v. Howard, 74 Ind., 87; Ex parte Ryon, 10
No complaint is made as to the instructions of the court, nor is any other error, than those already disposed of, pointed out.
It follows that the judgment of the trial court must be affirmed, and it is so ordered.