198 Ky. 515 | Ky. Ct. App. | 1923
Opinion op the Court by
Reversing.
Tbis is the second appeal of this. case. On the former appeal the judgment of conviction was reversed for certain errors and cause remanded for a new trial. Rooney v. Commonwealth, 193 Ky. 723, 237 S. W. 403.
Appellant was tried and convicted at a special term of the Bell circuit court held in the month of July, 1922. It appears from the records of the Bell circuit court that the special term was called by an order entered of record at the regular May term of that court, and that it was necessary for the Governor to appoint or assign a special judge to preside at the special term, as the regular judge would then be holding’ court in Harlan county. By the order, all former orders setting felony cases for the regular November term were set aside, and those cases were set for trial at the special term. On the orders of the same day there appears a further order calling a special term for the same day in July for the purpose of trying appellant’s case. The Governor designated a special judge to preside at the -special term, and when appellant’s case was called for trial, appellant challenged the jurisdiction of the court and asked a continuance on the ground that the first order calling a special term was invalid in that it did not name appellant’s case as one of those to be tried, and that the subsequent order appearing of record during the May term was, as a matter of fact, entered after the May term closed, and while the regular judge was holding’ court in Harlan county. In -support of this position, appellant filed the affidavit of the regular circuit clerk, and the statements therein contained are not denied.
It will -be observed that this is a case where a special term was called, to be presided over by a .special judge, while the regular judge was holding court in another county. In such a case the statute -authorizes the regular judge to call a special term by order entered of record at a- regular term, but provides that the order shall give the style of each case to be tried or in which any judgment, order or motion may be made or entered at such special term, and that “no other case shall be tried, or motion made, or order or judgment entered therein in any case even by agreement of parties.” Sec. 964a-l, Kentucky Statutes. As the original order calling the special term did not give the style of any case to be tried, it is clear that this order was invalid and conferred on the special judge no jurisdiction to try appellant. As the last order recites that the special term was called for the purpose of trying appellant’s case, it results that
No other question is decided.
Judgment reversed and cause remanded for a new trial consistent with this opinion.