Ehrlich v. Commonwealth

[683] Opinion op the Oourt by Judge Barker Reversing. The appellant, George Ehrlich, was indicted by the grand jury oí Campbell county, charged with the offense of maintaining a common nuisance in a room or house owned and controlled by him, located on the east side of the Alexandria pike south of the corporation line of Newport. The nuisance complained of was the operation of a poolroom at the place designated in the indictment. The defendant moved to quash this indictment because of certain named irregularities in the formation of the panel. This motion was overruled. To the indictment a general demurrer was interposed, which was also overruled. The defendant then filed a plea of former conviction, to which a - demurrer was sustained and the plea dismissed. Upon the calling of the case for trial, counsel for the defendant filed their affidavit that their client was sick in bed and unable to attend the trial; and this1 affidavit was supported by the certificate, under oath, of a physician, to the effect that the defendant could not leave his bed, being confined thereto by a disease called gastritis. Having filed those affidavits., counsel moved for a continuance of the case, which was overruled. The court then entered a plea of not guilty for the defendant and proceeded with the trial, with the result that the defendant was found guilty as charged in the indictment, and his punishment fixed by a fine of $2,000. His motion for a new trial having been overruled, he is here on appeal. It seems to us that the court erred in overruling defendant’s motion for a continuance under the cir [684] cumstancep shown by an affidavit. It may have been true, as is suggested in the brief of the Attorney General, that the defendant did not desire to go on the stand as a witness in his own behalf; but he had a right to be present and to ¡confront the witnesses against him, to hear their testimony, and to aid his counsel in the management of his defense. There was no suggestion on the part of the Commonwealth that Ehrlich was not really sick, or that he was acting in bad faith.. If there had been, and the court had, as he did, overruled the motion for a continuance, we should have felt great reluctance in reversing the judgment of the trial court upon the merits of the motion. But 'when the Commonwealth permits a defendant, at the first calling of his case, to show without contradiction that he is too sick to be present or to manage his defense, then we think be is entitled to a continuance of the case, so .as to give him an opportunity to exercise his constitutional right of being present at the trial, to confront the witnesses who accuse him, and to hear their testimony. We are also of opinion that' the court erred in sustaining the demurrer to the plea of former conviction. The plea seems to measure up to the requirements of the Code, and if, upon the trial of that issue, it should appear that he has been punished once before for the same offense with which he is charged now, then hie is entitled to go acquit. Cawein v. Commonwealth, 110 Ky. 273, 61 S. W. 275, 22 Ky. Law Rep. 1734; Milburn Wagon Co. v. Commonwealth, 104 S. W. 323, 31 Ky. Law Rep. 937. The trial court also erred in not limiting in his instruction the conviction of the defendant 'for keeping a nuisance at the place mentioned in the indictment. The instructions authorized -the jury to con [685] viet th,e defendant for keeping a poolroom anywhere in Campbell county, and there were no words limiting the inquiry to the specific place pointed out in the indictment. "We do not decide, now, that this error would alone authorize a reversal of the ease; but as there is to be another trial, the court will correct the instruction as indicated. The court correctly overruled the motion to quash the indictment for irregularities in the impaneling of the grand jury. Under section 281, Cr. Code Prac., we have no jurisdiction to reverse the ruling of the trial court upon a motion to quash an indictment. The case of Downs v. Commonwealth, 92 Ky. 605, 13 Ky. Law Rep. 820, 18 S. W. 526, does not militate against this view. There the grand jury was composed of 16 persons, instead of 12, as required by section 248 of the Constitution. The court held that the paper returned by such a body was no indictment at all. In conclusion, we are of opinion that the court committed no errors other than those pointed out. For the reasons given, the judgment is reversed for further proceedings consistent with' this opinion.