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§ 3 2 3 [3*6]' Justice may try at once or continue. If a person be
brought, or, in obedience to a bail-bond, come before a justice of the
peace, charged with the commission of an offence within the jurisdiction
of his court, as prescribed in Title II, the justice shall forthwith proceed
to the trial of the charge, or for sufficient cause may postpone the trial
to a future day.

§ 324 [317]. Disposition of defendant pending adjournment. If the
trial be postponed, the defendant may be committed to the custody of a
peace officer, or to jail, or discharged upon bail or without bail.

§ 3 2 5 [3 X 8]« When justice to require bail or bond for good behavior.
It shall be the duty of the justice to require bail of the defendant, upon
its being made to appear, that, unless bail be required, he will probably
escape punishment, or that his discharge without bail would endanger
persons or property ; in which latter case the justice may also require
security for the peace or for good behavior.

326 [319]. When justice to issue summons, or warrant If from his
personal knowledge, or from information given to him on oath, a justice
be satisfied that there are reasonable grounds for believing that a person
has committed a public offence within the jurisdiction of his court, he
shall either issue a warrant of arrest or a summons against such person.

§ 327 [320]. In wltat cases he may issue warrant of arrest. The war-
rant of arrest shall not be issued unless the offence charged be one of
actual or apprehended violence to person or property, accompanied with
a breach of the peace ; or the justice be satisfied that there are reason-
able grounds for believing that the defendant will escape punishment
unless arrested.

§ 3 2 $ [3 21 ]- N aiure and form of summons and warrant. The war-
rant of arrest, and the summons shall be similar to those prescribed in
Title VII.



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I08 APPEALS TO THE COURT OF APPEALS. [TITLE IX.

§ 3 2 9 [3 22 ]- Subpoenas, Attendance of witnesses. The justice shall
issue subpoenas for witnesses, and for the production of documentary
evidence, and enforce their attendance, or its production, as prescribed
in the Civil Code.

§ 33° [3 2 3]- Pleadiugs may be oral. No written information, nor
pleadings, shall be required in prosecutions in justices' courts.

§ 331 [324]. How issues tried. The issue of law and fact shall be
tried by the justice, in all cases in which the only punishment is a fine
of sixteen dollars or less. In other cases the defendant may demand
that issues of fact be tried by a jury.

§ 33 2 [3 2 S]- J uf y- Ho™ summoned. Upon a jury trial being law-
fully demanded, the justice shall order a peace officer to summon a
sufficient number of qualified jurors, from which the jury may be
formed.

§ 333 [3 2 ^]' Provisions of Title VI to apply to justices' courts. The
provisions of Title VI, so far as applicable, shall govern the trial, ver-
dict, judgment, and execution, in prosecutions in justices' courts, except
as provided in this title.



TITLE IX.



APPEALS.



Chap. i. To the Court of Appeals.
" 2. To circuit courts.



CHAPTER I.

To the Court of Appeals.

Art. 1. In felonies.
" 2. In misdemeanors.
" 3 . General prmnsions.

ARTICLE I.
In Felonies.



J 334. Appeals may be taken in felony cases.

i 335. Appeals only from final judgment except by Commonwealth.

Appeal by Commonwealth does not suspend proceedings.
? 336. How appeal taken by defendant.
§ 337. How appeal taken by Commonwealth.



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CHAP. I.] APPEALS TO THE COURT OF APPEALS. IO9

i 338. No summons, nor notice, necessary on appeal.

8 339* Judgment of acquittal not to be reversed.

\ 340. Judgment of conviction to be reversed for any error of law.

§ 341. Bill of exceptions must show all instructions given.

} 342. No reversal after death of defendant.

g 343. If defendant be in penitentiary he shall remain while the appeal is pending.

\ 344. But shall be removed upon reversal.

§ 345. If again convicted shall have credit for former confinement.

J 346. Proceedings upon affirmance of judgment of death.

§ 334 [3 2 7]- Appeals may be taken in felony cases. The Court of
Appeals shall have appellate jurisdiction in prosecutions for felonies,
subject to the restrictions contained in this article.

1. Upon an appeal by the accused, the Commonwealth can not prosecute a cross-appeal ;
but, upon reversal, the Court of Appeals will pass upon questions erroneously decided
against the Commonwealth, if proper exceptions have been taken. 13 Bush, 258.

2. An escaped prisoner, or a defendant who has failed to surrender himself to an exe-
cution according to his recognizance, has no right to prosecute an appeal. 10 Bush, 526;
78 AJ'., 501.

§ 335 [3 2 8, 340]. Appeals by defendant ontyjrom final judgment. By
Commonwealth not to suspend proceedings. An appeal shall only be taken
on a final judgment, except on behalf of the Commonwealth. An ap-
peal by the Commonwealth from a decision of the circuit court shall
not suspend the proceedings in the case. The decision of the Court of
Appeals shall be obligatory on the circuit courts, as being the correct
exposition of the law.

The defendant's motion for a new trial suspends the judgment, and he can not appeal
while the motion is pending (8 Bush, 179); but the Commonwealth, for settlement of the
law, can appeal from any adverse decision, whether final or not. 14 Bush, 531; 79 Ky. t
560; 89/^,287,308.

§ 336 [329]. How appeal taken by defendant. An appeal may be
taken by the defendant in the following manner only :

1. The appeal must be prayed during the term at which the judg-
ment is rendered, and the prayer noted on the record in the circuit
court. The appeal shall be granted as a matter of right (a).

2. When an appeal is prayed the court shall, if the defendant desire
it, make an order that the execution of the judgment be suspended
until the expiration of the period within which the defendant is required
to lodge a transcript of the record in the clerk's office of the Court of
Appeals. After the expiration of such period the judgment shall be
executed unless the defendant shall have filed in the clerk's office of
the court rendering the judgment, the certificate, as provided in subsec-
tion 3 of this section, that the appeal has been taken, or a copy of an



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IIO APPEALS TO THE COURT OF APPEALS. [TITLE a.



order of the Court of Appeals granting further time to lodge the trans-
cript.

3. The appeal is taken by lodging in the clerk's office of the Court
of Appeals, within sixty days after the judgment, a certified transcript
of the record. The clerk of the Court of Appeals shall thereupon issue
a certificate that an appeal has been taken, which shall suspend the exe-
cution of the judgment until the decision upon the appeal.

4. If time be given, beyond the term at which the judgment is ren-
dered, to present a bill of exceptions, the transcript of the record may
be filed in the clerk's office of the Court of Appeals within sixty days
after the bill of exceptions is made a part of the record.

(a) The Criminal Code of 1854 ($ 329, 330) did not authorize an appeal unless it was
allowed by a judge of the Court of Appeals. This Code gives it " as a matter of right,"
upon the conditions prescribed in § 336, which must be complied with. 84 Ky., 190, 485,
overruling Mackey ▼. Com., So Ay., 345.

§ 337 [33 *]• Ho™ token by Commonwealth, If an appeal on behalf
of the Commonwealth be desired, the Commonwealth's attorney shall
pray the appeal during the term at which the decision is rendered,
whereupon the clerk shall immediately make a transcript of the record
and transmit the same to the Attorney General, or deliver the transcript
to the Commonwealth's attorney, to be transmitted by him. If the
Attorney General, on inspecting the record, be satisfied that error has
been committed to the prejudice of the Commonwealth, upon which it
is important to the correct and uniform administration of the criminal
law that the Court of Appeals should decide, he may, by lodging the
transcript in the clerk's office of the Court of Appeals, within sixty
days after the decision, take the appeal.

§ 338 [332]. No summons, nor notice, necessary on appeal. No sum-
mons, nor notice, shall be necessary upon an appeal.

§ 339 [333]- Judgment of acquittal not to be reversed. A judgment in
favor of the defendant which operates as a bar to a future prosecution
for the offence shall not be reversed by the Court of Appeals.

See note to \ 170, ante, p. 54.

§ 34° [334]- Judgment of comnction to be reversed for any error of laz*.
A judgment of conviction shall be reversed for any error of law, to the
defendant's prejudice, appearing on the record.

[Amended by substituting, after the word ' * law, " the following words:
4 'Appearing on the record (a), when, upon consideration of the whole
case, the court is satisfied that the substantial rights of the defendant
have been prejudiced thereby" (b). (Act of March 4, 1880.)]



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CHAP. I.] APPEALS TO THE COURT OF APPEALS. Ill



(a) I. Reversible errors under the Code of 1854.

Reversible errors under § 334 of the Code of 1854 (namely, an error in admitting or
rejecting important evidence; in instructing or refusing to instruct the jury; in failing to
arrest the judgment; or in allowing or disallowing peremptory challenge) being included
in the grounds for reversal now allowed, the decisions concerning the former are authorities,
to some extent at any rate, as to —

1. Error in admitting or rejecting testimony.

(1) To authorize the reversal of a judgment of conviction for felony upon the ground
of the rejection of evidence offered on the part of the defendant, it is not sufficient that
the rejected evidence be shown to have been merely pertinent or relevant, or technically
admissible: it must be important for the defendant, in view of the whole case as presented.
2 Met., 17.

(2) Though, if there be any evidence tending to convict the accused, a judgment against
him will not be reversed on the ground that it is against the evidence (see note (b), ante,
p. 97); the rejection of important evidence in his behalf is a reversible error, the argument
that the judgment is right upon all the testimony, including that which was rejected, not
being entitled to any weight in a criminal case. 15 B. M., 539. And see Bowiin v. Com.,
15 Ky. L. R., 149, and Scott v. Com., Id., 251.

And as to incompetent evidence against the accused which had been admitted, the
Court of Appeals said: «« We can not speculate on its effect : it is enough for the court to
know that it was wrong, and may have operated to the prejudice of the appellant." 3
Bush, 533; 14/4,361.

(3) To show that evidence excluded by the court, in refusing to allow the witness to
answer a question, is important, the bill of exceptions must show what the answer was
expected to be (1 Met., 6; 9 Bush, 669; 11 Id., 575; 82 Ky., 549); but it is improper to
permit counsel to state within the hearing of the jury what the proposed evidence would be.
Si Ky., 186.

(4) An alleged error in admitting evidence can not be considered unless it was excepted
to. 3 Met., 10; 17 B. M., 310.

(5) The erroneous admission of important evidence against the accused, notwithstand-
ing his objection, as shown by the bill of exceptions, is ground for reversal of the judg-
ment, though it was not relied on in his motion for a new trial ; that not being one of the
grounds for a new trial specified in J 271. 9 Bush, 224; 79 Ay., 496.

2. Error in giving or refusing instructions.

(1) As to instructions generally, see notes to \ 225 of Criminal Code.

(2) In Hopkins v. Com., 3 Bush, 480, it was held that the defendant could not avail him-
self of an error of the court, in erroneously giving to the jury an oral instruction, because
he had failed to rely upon that error in his written grounds for a new trial.

(3) See \ 341 as to embodying instructions in a bill of exceptions.

3. Error in allowing or disallowing a peremptory challenge.

It was held that, however the disallowance of a challenge for cause by the defendant
may have influenced his course in the use of the peremptory challenges allowed him, it
can not be regarded as a refusal to allow a peremptory challenge, within the meaning of
i 334 of the Criminal Code; and, regarded as the disallowance of a challenge for cause
merely, it can constitute no ground of reversal in the Court of Appeals. 7 Bush, 191.

II. Reversible errors under the Code of 1877, as amended.

In addition to the errors for which judgments were formerly reversible, a judgment
can now be reversed for any error appearing on the record,* if substantially prejudicial to
the appellant's rights; as, erroneous refusal to grant a continuance (14 Bush, 112; 92 Ky.,
68); or refusal to grant a change of venue. Higgins v. Com., 14 Ky. L. R., 729.



•The only errors which the Code excludes from the record are those to which exceptions are forbid-
den by § 281.



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112 APPEALS TO THE COURT OF APPEALS. [TITLE IX.



(o) Unsubstantial errors.

The following-named errors have been held insufficient to authorize a reversal, viz.: the
refusal of the court to allow the prisoner to be present when the jury viewed the place of
the homicide (78 Ky., 639); reference by the Commonwealth's attorney to matters not in
evidence, no objection having been made at the time (89 Ky., 364); premature rendition
of judgment against the accused (89 Ky., 365); permitting a witness .to state on the trial
that he had on a certain occasion said to another person that he could discover with bis
naked eye a spot of blood on the hat-band of the accused (86 Ky., 323); admitting incom-
petent evidence of a fact which was otherwise proved (89 Ky., 210); conviction of the ac-
cused in 1890/ without disposing of an indictment found against him in 1873; or the f*ct
that, after the submission of the case, two of the jurors were absent from the others for
thirty minutes in another room in the same building, there being no evidence of undue in-
fluence or interference of others (91 Ky., 200); the giving of erroneous instructions, or the
refusal to give instructions, when the defendant's guilt was proved beyond doubt (92 Ay.,
456; Lewis v. Com., 14 Ky. L. K., 212); failure of the record to show that a "plea of not
guilty" was entered, or absence of the accused when an instruction was modified, it being
manifest from the entire record that an issue was made, and that he had a fair and impar-
tial trial, and that his substantial rights were not prejudiced (78 Ky., 586); misconduct of
the Commonwealth's attorney, when the trial was conducted fairly in other respects, and
it was apparent that no other verdict could have been rendered without misconduct on the
part of the jury. Hourigan v. Com., 15 Ky, L. R., 265.

But in BarneU v. Com., 84 Ky., 449, the court said: "The correct rule, we think, is
that every improper instruction should be taken as prima facte prejudicial to the accused,
subject, of course, to be shown otherwise by the evidence in the case;" and reversed the
judgment because of this instruction: "The jury are the sole judges for themselves of
the weight of the testimony and credibility of the witnesses, and may attach such weight
to any and all parts thereof as they may think proper; and if they believe that any witness
or witnesses have willfully sworn falsely as to any material fact, they may, if they deem
proper, disregard the entire testimony of such witness or witnesses." And a judgment
was reversed because of the following instruction : " Where there is a conflict in the testi-
mony of witnesses, the one side being of an affirmative and the other of a negative char-
acter, the affirmative character of testimony is preferred, and is entitled to the greater
weight by the jury in making up their verdict" (8 Bush, 179). But, in general, an instruc-
tion that the jury is the sole judge as to the evidence and credibility of witnesses, though
erroneous, is not ground for reversal. 86 Ky., 609; 87 Id., 500.

As to curing the error of admitting incompetent evidence by an instruction with refer-
ence thereto, see note 14, ante, p. 81.

§ 34* [335]- Bill of exceptions must show all instructions. A judg-
ment shall not be reversed for an error of the court in instructing or
refusing to instruct the jury, unless the bill of exceptions contain all the
instructions given by the court to the jury, and unless it shall thereupon
appear that the law applicable to the case was not correctly and fairly
given to the jury.

1. "It is not absolutely necessary that the record should state, in terms, that a// the
instructions given by the court were contained in the bill of exceptions. Any equivalent
expression, or any language or statement that would convey, with reasonable certainty,
the same idea, would doubtless be held sufficient to answer the requirements of this pro-
vision of the Code." But the following statement in a bill of exceptions was held insuf-
ficient to show that it contained all the instructions that were given: "The attorney for



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CHAP. I.] APPEALS TO THE COURT OF APPEALS. 113

the Commonwealth asked the court to give the following instructions (going on to enumer-
ate them); to each and all of which the defendant objected, but the court overruled the
objections; and the defendant at the time excepted, and still excepts. The defendant
then asked the court to give the following instructions, which the court gave (going in like
manner to set them out." 3 Met., 10, 23.

2. A statement of the clerk of the court below, following the bill of evidence and
exceptions signed by the judge, that certain specified instructions had been given and
others refused by the court, do not make them a part of the bill of exceptions. 78
A>., 204.

3. But in I Duv., 224, the following statement was held to be sufficient to show that
the bill of exceptions contained all the instructions given: "The defendant moved the
following instructions, and the Commonwealth moved the following ; and then the court
gave to the jury the following instructions in lieu of those refused and in explanation of
those given."

And in 9 Bush, 593, the following statement was held to be sufficient: "The court, on
motion of the Commonwealth's attorney, instructed the jury as follows, to-wit (giving
the instructions), and the court instructed the jury as follows, on motion of defendant
(giving them)."

4. "As the instructions asked by the defendant are not copied in the record, being lost
as stated by the clerk, it must be presumed that the ruling of the court in relation to them
was right." 6 Bush, 326.

5. The court can not consider instructions not embraced in the bill of exceptions, even
with the consent of counsel. 80 Ky. y 38.

6. See further, as to exceptions and bills of exceptions, Civil Code, $ 333 to 338, and
notes thereto.

§ 342 [336]. No reversal after death of defendant. No appeal shall be
taken after the defendant's death, and upon his death an appeal taken
during his life shall abate, and shall not be revived.

§ 343 [337]- If defendant in penitentiary shall remain pending appeal.
If a judgment of confinement in the penitentiary have been executed
before the certificate of the appeal is delivered to the sheriff whose duty-
it is to execute the judgment, the defendant shall remain in the peniten-
tiary during the pendency of the appeal, unless discharged by the expi-
ration of his term of confinement, or by pardon ; and upon a reversal,
if a new trial be ordered, shall be removed back, from the penitentiary,
to the county jail from which he was brought, by the sheriff of said
county.

§ 344 [338]. But shall be removed upon reversal. Upon a mandate of
reversal, ordering a new trial, being filed in the clerk's office of the
circuit court in which the judgment of confinement in the penitentiary,
which has been executed, was rendered, the clerk shall deliver to the
sheriff a copy of the mandate, and a precept authorizing and command-
ing him to bring the defendant from the penitentiary to the county jail, -
which shall be obeyed by the sheriff and keeper of the penitentiary.

§ 345 [339]' Ifag&in convicted shall have credit for former confinement.
If the defendant, upon the new trial, be again convicted, the period of



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1 14 APPEALS TO THE COURT OF APPEALS. [TITLE lx.

his former confinement in the penitentiary shall be deducted by the
court, from the period of confinement fixed in the last verdict of con-
viction, or be allowed by the court in fixing the period of confinement,
although such allowance reduce the period, for which the defendant is
sentenced, below the shortest period prescribed by law as a penalty for
the offence of which he has been found guilty; unless the period of
confinement fixed in the verdict or by the court be for life.

§ 346 [340]. Proceedings upon affirmance of judgment of death. When
a judgment of death has been affirmed, the clerk of the Court of Ap-
peals shall transmit to the Governor a certificate of the affirmance and
of the judgment of the circuit court, to the end that a warrant for the
execution of the judgment may be issued by the Governor. The Gov-
ernor shall send his warrant of execution by a special messenger, or by
mail, to the proper officer, and shall name therein the day and time of
execution, but shall not appoint an earlier day than that which had been
fixed on by the circuit court. The officer receiving the same shall report
his action both to the Governor and the circuit court. If, from any
cause, the execution do not take place on the day appointed by the
Governor, he may, from time to time, appoint another day for execution,
until the sentence is carried into effect.



ARTICLE II.

In misdemeanors.

$ 347. In what cases Court of Appeals has jurisdiction.

§ 348. How and when appeal prayed and taken.

$ 349. Appeal does not suspend execution, unless bond executed.

§ 350. How appeal taken by Commonwealth.

\ 351. No summons necessary on appeal.

\ 352. Judgment of acquittal not reversible, if punishment may be imprisonment

% 353. Judgment may be reversed for any error of law.

§ 354. Attorney's fee to be taxed if defendant fail.

J 355. Appeal in penal actions to be regulated by Civil Code.

\ 356. Damages against defendant on affirmance, if bond given.

§ 347 [34 2 ]- In what cases Court of Appeals has jurisdiction. The
Court of Appeals shall have appellate jurisdiction in penal actions, and
prosecutions for misdemeanors, in the following cases only, viz. : If the
judgment be for a fine exceeding fifty dollars, or for imprisonment ex-
ceeding thirty days ; or, if the judgment be for the defendant, in cases
in which a fine exceeding fifty dollars, or confinement exceeding thirty
days, might have been inflicted.

1. Upon a judgment of acquittal under an indictment for a misdemeanor which was
punishable by fine and imprisonment, it was held that an appeal by the Commonwealth,



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CHAP. I.] APPEALS TO THE COURT OF APPEALS. 115

for the purpose of reversal, was forbidden by \ 347 (now } 352); and that an appeal by the
Commonwealth, to obtain an exposition of the law, does not apply to misdemeanor cases.
9 Bush y I.

2. This section applies only to cases provided for by the Criminal Code itself, and in
which the punishment authorized is fine or imprisonment or both; and not to a judgment
disbarring an attorney, from which an appeal lies, though it did not inflict either fine or
imprisonment. 2 Met., 619.

3. No appeal lies for the defendant from a judgment for a fine not exceeding fifty dol-
lars (14 Bushy 171); unless it also deprive him of a franchise. 90 Ay., 53.

4. A defendant who has failed to surrender himself to an execution according (p his
recognizance has no right to prosecute an appeal. 78 Ky., 501.

§ 348 [343]. How, and when, appeal prayed and taken. The appeal
must be prayed during the term at which the judgment is rendered, and
shall be granted upon the condition that the record be lodged in the
clerk's office of the Court of Appeals within sixty days after the judg-
ment.

1. The Court of Appeals can not take jurisdiction unless the appeal be taken during
the term at which the judgment is rendered, though time be given, by consent of parties,
until the next term, to prepare a bill of exceptions : if time can be given for that purpose,
it can only be done by withholding or suspending judgment. 16 B. Af., 338; 2 Met., 376.



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 132 of 142)