With the utmost deference to and respect for the opinion of the majority of my Brethren as prepared for them under their direction by Commissioner Stanley, I must dissent, being firmly convinced that it is supported neither by the record nor by the law. The judgment is reversed in this case solely on the ground that the trial court erred in not granting the appellant a continuance in order that counsel whom the court appointed on the day of the trial to defend appellant might have time for preparation. Let us see, now, first whether the record *Page 467 justifies any such decision or not. The record shows that the woman whom appellant is accused of killing died on November 4, 1929. The indictment against the appellant, whom we shall hereafter call the defendant, was returned on November 25th following. The defendant had evidently been arrested before the indictment was returned and was in custody, for we do not find anywhere in the record where a bench warrant was issued for his arrest. On the contrary, the record recites that on the 26th day of November, 1929, the defendant was brought into court by the jailer and with him "came his attorney," and thereupon the defendant waived arraignment, pleaded not guilty, and his case was assigned to December 19, 1929, for trial. The majority opinion naively states:
"We may assume that the waiving of arraignment was formal and that the defendant really had no attorney to prepare his case until the day of the trial."
Harking back to the days of my practice, a portion of which the earlier years comprised a number of criminal trials, I cannot recall a single case of my own or others where the waiving of the arraignment was not formal. The court calls the case on the docket, stating the charge as "murder," "robbery," or whatever it is, and the accused through his counsel then says: "We waive arraignment and plead not guilty." It is very hard for me to understand how the waiving of the arraignment could be otherwise than formal. And the statement in the opinion that the defendant "really had no attorney to prepare his case until the day of trial" finds no support for its verity save in an assumption made in direct defiance of the recitals in the record. Even so serious a case as this, where the life of the accused is at stake, does not warrant this court in going outside an unattacked record. The order concerning the arraignment states that defendant was present in person and by counsel. The defendant makes no attack upon this order either in his brief or in the record itself. His silence as to it is an admission that on his arraignment he was represented by counsel. The next we hear of this counsel matter is in the motion and grounds for a new trial. The sixth ground reads:
"The court erred in overruling the defendant's motion for a continuance and forced the defendant *Page 468 into trial without sufficient preparation to prove his case."
I may add that no motion for a continuance can be found in the record, but in the bill of exceptions it is recited:
"Said counsel for defendant was appointed for defendant by the court, the morning of the trial, and was forced to immediate trial over motion for continuance."
Evidently the motion for a continuance was made orally. But we have yet to be told anywhere in the record for what reason the continuance was asked, other than the statement in the motion and grounds for a new trial that the defendant was without sufficient preparation to prove his case. It is not stated that he had not had sufficient time to prepare his case; only that his case had not sufficient preparation. This is no hypertechnical distinction sought for and found by me in the record, but is a sound distinction, and the statement as literally written in the motion and grounds for a new trial was the real reason why the continuance was sought, as I shall establish by the record itself. The defendant's defense was that the deceased died from acute alcoholism and oedema of the lungs. So far as this record shows, defendant could, and even now can, prove that only by the testimony of the physician at the City Hospital where the deceased was taken just prior to her death. This physician was not present in court when the case was called for trial. The impaneling of the jury evidently took up the better part of the day of December 19th, for after the jury had been secured, the record recites that the court recessed until 8 o'clock p. m. On the court reassembling, the record states that on motion of defendant's counsel, a forthwith subpoena was issued for the physician at the City Hospital. He later appeared and testified. So I assert that counsel were not, so far as this record discloses, seeking a continuance in order to prepare themselves to try this case, but because defendant had not subpoenaed his witnesses into court and hence had not, as the motion and grounds for a new trial recites, sufficiently prepared his case. I say he had not subpoenaed his witnesses because, if he had, the order which went would not have been a forthwith subpoena, but an attachment or order of arrest to bring a recalcitrant *Page 469 witness into court. To me the logic of the record is inescapable. But were it otherwise, and counsel in truth did ask a continuance to permit of their own preparation for trial, the record still fails to show that the trial court abused its discretion in overruling their motion. There is not a line in the record to show what became of the counsel who appeared for the defendant on his arraignment. There is not a line in the record to show that the defendant made any effort to employ other counsel between the time of his arraignment and his trial, or if financially unable to do so, that he made any effort to communicate his plight to the court and to request appointed counsel. There is not a line in the record to show that his failure to request appointed counsel was due to any ignorance of his privileges or rights to have counsel appointed for him. All the record shows is that the defendant was arraigned on November 26th, had his case assigned for trial to December 19th, almost a month later, and then showed up on the day of his trial without counsel. No diligence shown whatever to get ready for his trial. The cases collected in the case of Williams v. Commonwealth, 230 Ky. 327, 19 S.W.2d 964, which is a complete refutation of all the majority opinion rests upon, establish without dissent that to entitle an accused to a continuance in order that his counsel may have time to prepare his case, the record must show affirmatively some diligence on the part of the accused in procuring counsel of his own choice or by appointment of the court, or that, through ignorance, the accused was not aware of his right to have counsel appointed for him. Nothing like that appears here. But beyond all this, it is finally settled by the cases cited in the Williams case and by many others, among which are Anderson v. Commonwealth, 235 Ky. 176, 30 S.W.2d 898; Haywood v. Commonwealth, 221 Ky. 378, 298 S.W. 985; Hutsell v. Commonwealth, 225 Ky. 492, 9 S.W.2d 132, that a case will not be reversed by this court, on the ground here argued, where there is no showing in the record that the attorneys could, if a new trial be granted, make any better showing than they did on the first trial. The motion and grounds for a new trial in this case were filed on December 20, 1929. They were not finally disposed of until January 25, 1930, over a month later. But there is not a line, word, or syllable in the record to indicate that the accused could make any better *Page 470 showing by way of testimony or otherwise on a new trial if granted than on the one he had.
Thus, I believe, I have shown that the majority opinion finds no support in the record, in the law, or in logic. This was not a case tried under undue excitement or amidst local prejudice. The murder, if it was murder and the jury decided that it was with ample evidence to sustain its finding, was a most brutal and callous one. The verdict of the jury is indeed a most solemn one, but if it thought the woman was murdered, as it had a right to do from the evidence, it can scarcely be said that the punishment meted out was not in accordance with the brutality of the crime. Courts are, in these days and times, criticized for what are called extreme technicalities upon which they allowed those accused of crime to go scot free. I agree that too much of that criticism is scarcely justified. But some of it is, and, in my judgment, the majority opinion furnishes another example for just criticism. I am authorized to state that Chief Justice THOAMAS and Judge REES join with me in this dissent.