Eden v. Commonwealth

OSBORNE, Judge

(dissenting).

On August 31, 1967, the appellant in company with Ruford Turner, Jr., broke into the dwelling house of Russell Cetrino for the purpose of burglarizing the house. In the process of the burglary they cut the victim with a knife and also cut his wife, Eleanor Cetrino, with the intention of killing her.

On January 16, 1968, they were jointly indicted for this offense by the Fayette County Grand Jury. Following the indictment the transcript of record shows the following steps.

April 10, 1968, the appellant, who had retained counsel moved the court for the personal attendance of Paul Abner, who was confined in the Kentucky State Reformatory at LaGrange, Kentucky, requesting that he be brought to Fayette County for the purpose of testifying as a witness.

April 10, 1968, order was entered by the Fayette Circuit Court directing Paul Abner to be transported to Fayette County to testify at trial to be held on April 21, 1968, at 9 a. m.

May 1, 1968, order was entered continuing the case upon appellant’s motion.

July 2, 1968, order entered continuing the case upon appellant’s motion.

September 4, 1968, motion made by appellant supported by affidavits to require the attendance of Paul Abner to attend trial set for September 12, 1968, at 9 a. m.

September 4, 1968, order entered requiring presence of Paul Abner on Thursday, September 12, 1968, for the purpose of testifying.

September 12, 1968, order entered reassigning case for trial on Wednesday, October 16, 1968, at 9 a. m.

October 16, 1968, order entered that case be continued on the docket.

January 22, 1969, order directing that this case be reassigned for trial on Thursday morning, January 23, 1969.

January 23, 1969, order showing that appellant, with his accomplice, and with advice of counsel, waived formal arraignment and entered a plea of not guilty. Jury was impanelled, tentatively accepted and court adjourned until Monday morning, January 27, 1969, at 9 a. m.

January 27, 1969, order entered upon motion of appellant. It is ordered that this cause be continued until the next term of court.

April 8, 1969, attorney Henry Hughes, moved court to withdraw as attorney of record.

April 21, 1969, motion and affidavit by Commonwealth to require presence of Paul Dempsey Abner for trial on May 1, 1969.

April 21, 1969, order directing that Paul Dempsey Abner be transported to Fayette County for the purpose of testifying.

April 22, 1969, order that Henry Hughes’ motion to withdraw as attorney be overruled.

*626April 23, 1969, renewal of Henry E. Hughes’ motion to withdraw as attorney stating reasons. The reasons being:

1. The appellant is not indigent. The appellant is able-bodied and has the ability to work and pay for the services of an attorney.

2. The appellant is out on bond and that he paid Salem Moody of Richmond, Kentucky, the sum of $600 to defend him in this action; that he did not pay an additional $400 which he owed Mr. Moody and therefore Mr. Moody withdrew as his attorney.

3. That the affiant did not know these facts at the time he was appointed to defend the appellant; that upon learning the facts he asked the appellant to pay him the reasonable fee of $250 and that the appellant agreed to pay this amount but later advised the affiant that he refused to pay one penny.

May 1, 1969, there appears a trial order showing that the appellant appeared with attorney Ernest Jasmin; that a jury was sworn and that Mrs. Thelma Estes, the official stenographic reporter was directed to record the testimony. The trial progressed and being concluded, the jury brought into court the following verdict: “We find the defendant guilty under item 6, and sentence him to the penitentiary for a period of eight years.” /s/ Frank E. Clegg, Foreman.

May 6, 1969, order showing that appellant was brought into court and being informed of the matter of the indictment, plea and verdict was asked if he had any legal cause to show why judgment should not be pronounced against him. None being shown, it was adjudged by the court that he be confined in the penitentiary for a period of eight years to be served concurrently with a previous sentence incurred as a result of parole violation.

May 14, 1969, notice of appeal filed.

In view of the foregoing record, the appellant, a parole violator, having broken into a citizen’s home at night and attempted to kill him and his wife with a knife, having first retained counsel and refused to pay when he was able to do so and having the court to time and time again put off his trial — I don’t believe that we should reverse his conviction merely because the court finally got him to trial. If the foregoing record demonstrates anything, it demonstrates to me that if the court is forced again to try to get this man to trial it may never do so because of old age. The question of whether or not the appellant was trying to avoid trial is a value judgment which the trial court had to make. The trial court determined that he was attempting to avoid trial without good cause and further determine that he was in no way prejudiced by the court’s action in forcing him to trial. In my opinion these acts did not constitute an abuse of judicial discretion.

For the foregoing reasons, I respectfully dissent.