Webb v. Commonwealth, 111 Ky. 643

Webb v. Commonwealth

111 Ky. 643 | Ky. Ct. App. | 1901

Opinion of the court by

JUDGE WHITE

Affirming.

The' appellant was indicted, tried, and convicted >of the offense of selling spirituous liquors in Letcher county. His fine was fixed at $100, and he appeals. The bill -of excep*644tions shows that on the calling of the case for trial the appellant failed to answer, and thereupon the indictment was taken as true, and a jury impaneled a true verdict to render. The court instructed the jury to find the defendant guilty, and to fix his punishment at not less than $100 nor more than $200, etc. The verdict fixed the fine .at $100, and judgment for that amount was rendered. Afterwards, at the same term of court, appellant appeared, and filed his motion and grounds for a new trial. In support of his motion he filed the affidavit of himself and another, showing that on the morning the case was set for trial and the day it was tried he came to town, to be present at his trial and to make defense, and that in alighting from his animal he fell or was thrown and severely injured, so that he was unable to arise or go to the court room, and was unconscious for quite a while. The affidavit in support of his motion, if true, shows that appellant was by unavoidable casualty prevented from being present at bis trial, and making defense thereto. The affidavit, if true, also shows appellant was not guilty of the offense of which he was convicted. The court overruled the motion for a new trial, and to this action exception was taken. This is the only exception in the case.

Section 281, Code Cr. Prac., provides: “The decisions of the court upon challenges to the panel, and for cause, upon motions to set aside an indictment, and upon motions for a new trial, shall not be subject to exception.” It has been repeatedly held by this court that under the above section no action of the trial court upon a motion ■for a new trial can be brought before us for review. If the alleged error appears in the record, and is some action or ruling of the court other than one of the four -classes named in the section, supra, we may review the *645action of the trial court. But the Code is clear that, the decision of the court upon motions for a new trial are not subject to exception. The only decision the court could render upon1 motion for a new trial is to grant or refuse the new trial, and this action and decision can not not be excepted to or reviewed by this court. Redmon v. Com., 82 Ky., 333 (6 R., 225); York v. Com., 82 Ky., 362 (6 R., 344); Com. v. Hourigan, 89 Ky., 308 (11 R., 509) 12 S. W., 550; Vinegar v. Com. (20 R., 412) 46 S. W., 510; Howard v. Com., 110 Ky., 356 (22 R., 1845) 61 S. W., 756, and numerous other cases. There is no exception in the provisions of the Code in favor of a defendant convicted in his absence. Nor is there any provision of the •Code for a remedy where a person has been convicted in his absence, except by motion to the trial court for a new trial. From the action of the court, if a new trial is refused, it seems that there is provided no remedy by appeal, because that action is not reviewable here. Evidently, the court in the cases of Payne v. Com. (16 R., 839) 30 S. W., 416, and Sharp v. Com. (16 R., 840) 30 S. W., 414, did not have its attention directed to this section of the Code, as no mention is made of its provisions, and in so far as these cases appear to conflict herewith they are overruled.

However much we might believe appellant to have been entitled to a new trial on the showing’ of the two affidavits, we ar,e without power to review the action of the circuit court on the motion. The right of appeal in criminal cases exists only by virtue of the statute, and in- the manner and with the limitations prescribed. For the reasons indicated, the judgment is affirmed.