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138 Ky. 1

Smedley v. Commonwealth

Court of Appeals of Kentucky

Decided April 21, 1910

Court of Appeals of Kentucky · decided 1910-04-21

<p>1. Embezzlement — Nature of Offense — Embezzlement is a Statutory crime.</p> <p>2. Embezzlement — Indictment—Requisites.—An indictment for embezzlement, which alleged*, that accused received and' had in his custody a specified .sum of money which was the property -of the state, that the money was collected by him as county clerk under a duty and trust imposed by law to receive and pay it to the Auditor of • state, that instead of paying it over to the Auditor he converted the money to. his own use, fraudulently and with the felonious intent to deprive the state thereof, charged embezzlement under St. 1909, section 1205, punishing the misappropriation of property of the state, though it did not give the names of any of the persons of whom adcused collected money for tho state, nor aver on what account, nor the amounts received of them.</p> <p>S. Indictment and Information — Bill of Particulars. — ¡Where the facts alleged in an indictment, alleging that accused embezzled money of the state, received by him as clerk of the county court of the county, for delinquent taxes and taxes on mortgages, etc., were such as must be presumed to have been hnown to him., the refusal to require a bill of particulars, giving the names of the persons from whom accused collected the money and the amount collected of each and on what account, was not ground for reversal, though it would have been better to have required a bill to be filed.</p> <p>4. Criminal Law — Appeal—Review—Discretion of Trial Court. —¡The action of the trial court in granting or refusing a bill of particulars is subject to review where the trial court abused its discretion.</p> <p>5. Criminal Law — Continuance—Grounds—Unpreparedness for Trial. — Where accused showed that he had been confined in a lunatic asylum without opportunity to consult his counsel, and without ability to assist in the case, and that during the short interval between his discharge from the asylum and the beginning of the trial his counsel were so constantly engaged in the trial of other cases as to render it impossible to give his case proper attention, the refusal to grant .a continuance on the 'ground of unpreparedness for trial was erroneous.</p> <p>6. Criminal Law — Courts—Jurisdiction—“Criminal Term” — “Civil Term.” — >St. 1909, section 965, providing for criminal terms of the circuit court of a county, and for civil terms thereof, divides the circuit court of .the county into criminal and civil terms, and while the one circuit judge of the judicial district embracing the county presides at both the criminal and civil terms, he is without jurisdiction to try a criminal case at a civil term, -or to try a civil action at a criminal term, the words “criminal term” applying to a term of court at which indictments are found and returned, and at which persons are tried for crimes and other penal offenses, and the words “civil term” applying to a term at which civil business is disposed of, and controversies cognizable at law or in equity are litigated.</p> <p>7. Criminal Law — Courts—Jurisdiction.—Where a criminal case was continued at a criminal term of a circuit court of a county having criminal and civil terms, the case could not be called for trial until the next criminal term, and the court was without jurisdiction to try the case at the intervening civil term.</p> <p>8. Criminal Law — Evidence—Insanity— Admissibility.— Where ■accused relied on insanity at the time of the commission of the crime, and there was evidence that during the time of the commission of the offense he was addicted to the use of drugs impairing, if not destroying, his mind, the inguest of' lunacy, held at the same term of court at which the trial occurred, was admissible.</p> <p>CN PETITION FOR REHEARING.</p> <p>9. Statutes — Special Law — Terms of Court. — Ky. St. section 965, in so far .as it undertakes to divide the terms of the circuit court, in McCracken county into civil terms and criminal terms, is violative of Const, section 59, subsec. 1, providing that the General Assembly shall not pass local or special acts to regulate the jurisdiction or practice of the courts of justice.</p> <p>10. Statutes — Effect of Partial Invalidity — Terms of Court.- — The invalidity of a provision in Ky. St. section 965, dividing the terms of court in McCracken county into civil terms and criminal terms, does not affect the validity of any other part of the act, or alter the number of' terms that may be held in that county, but makes each term a general term at which both civil and criminal cases may be disposed of.</p>

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1910-04-21

How this case has been cited

Cited by 13 later decisions — most recently March 1977

13 state decisions

601910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Extended Opinion by

Judge Carroll

¶2on Petition eor Rehearing.

¶3In the opinion it is held that as the Legislature by the' act of 1908, now section 965 of the Kentucky Statutes, provided that the circuit court of Mc-Cracken county should hold three civil terms and three criminal terms during each year, that it is not competent to try a criminal case in McCracken county at a term designated as a civil term or a civil ease at a ierm prescribed in the act for the trial of criminal eases.

¶4Upon a reconsideration of so much of the opinion as relates to this point, we have concluded that the act of 1908, in so far as it undertakes to divide the terms of the circuit court to be held in McCracken county into civil terms and criminal terms, is in violation of section 59, subsec. 1, Const. This subsection, in connection with the preceding clause, reads: ‘ ‘ The General Assembly shall not pass local or special acts concerning any of the following subjects or for any *13of the following purposes, namely: To regulate the jurisdiction, or the practice, or the circuits of the courts of justice, or the rights, powers, duties or compensation of the officers thereof; but the practice in circuit courts in continuous session may by a general law be made different from the practice of circuit courts held in terms.” The Legislature in providing that there should be held in McCracken county civil terms and criminal terms evidently intended, as said in the opinion, to divide the circuit court of Mc-Cracken county into three criminal and three civil terms each year, the legal effect of which, if the act was valid, would be to deprive the court of power or jurisdiction to try criminal cases, impanel a grand jury, or dispose of any other matter pertaining to the administration of the criminal law at or during a civil term of the court, or to try a civil action or proceeding at or during a criminal term of the court. In thus undertaking to divide the terms into civil and criminal terms the Legislature undertook to and did enact a local and special act, applicable alone to McCracken county, regulating, the jurisdiction of the circuit court in that county; and this it was without power to do. Although it would not be advisable and would create much confusion, in the trial and disposition of cases, it would yet be competent for the Legislature to enact a general law providing that all circuit courts in the state, except those in continuous session, might hold terms for the trial of civil cases and terms for the trial of criminal cases. But it is without authority to single out one or more counties in which courts of continuous session are not held and prescribe that in such county or counties there shall be held civil terms and criminal terms.

¶5*14This conclusion does not affect the validity of any other part of the act, or alter or disturb the number of terms of the circuit court that may be held iu McCracken county, but at each of the terms civil and criminal cases array be heard and disposed of. In other words, each term is a general term of the circuit court at which any business that the circuit court may have jurisdiction of can be heard and determined:

¶6So much of the opinion as is in conflict with the views herein expressed is withdrawn, and the petition for rehearing is overruled.

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