# Brown v. Hoblitzell > Court of Appeals of Kentucky (pre-1976) · December 13, 1957 · 307 S.W.2d 739 URL: https://www.frixlaw.com/law-library/cases/9767720 ## Case - **Full name:** James BROWN, Appellant, v. Bruce HOBLITZELL, Sheriff and Jailer of Jefferson County, Appellee - **Court:** Court of Appeals of Kentucky (pre-1976) - **Decided:** December 13, 1957 - **Citations:** 307 S.W.2d 739 - **Precedential status:** Published - **Opinion:** Dissent by Sims - **Judges:** Hogg, Montgomery, Sims - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767720 ## How later opinions describe it (automated extraction) - noting that while every effort must be made to harmonize statutes on the same general subject, "[i]f the conflict cannot be reconciled, the later statute controls" - noting that while every effort must be made to harmonize statutes on the same general subject, "Li]f the conflict cannot be reconciled, the later statute controls” ## Opinion text SIMS, Judge (dissenting). I must register my' dissent from the majority opinion because I feel the conviction of the defendant and his confinement in jail were in disregard of standards of procedure that are the very essence of justice. I readily agree that the evidence submitted on the one pseudo trial established guilt of four felonies of voluntary manslaughter. Upon separate trials, held according to due process of law, the evidence would have warranted much severer punishment. As expressed by Judge Cardozo in People v. Moran, 246 N.Y. 100 , 158 N.E. 35, 37 , “A criminal, however shocking his crime, is not to answer for it with the forfeiture of life or liberty till tried and convicted in conformity with law.” My dissent rests on four grounds, namely: (1) the warrants which formed the bases of the convictions were fatally defective; (2) the defendant was tried for only one offense but was adjudged guilty of five separate offenses and is serving sentences on five convictions; (3) there is no authority in law for such an officer as a trial commissioner of a quarterly court; and (4) a judgment of guilt in the absence of a verdict by a jury must be rendered by a judge who heard the evidence in person and not through a proxy. I. To start with, the so-called warrants were no warrants at all. They were not issued as authority to arrest, for Brown was arrested at the scene of the automobile disaster. They were drawn and filed- as accusations only. One warrant charged that Brown “has committed the offense of KRS.” That is all. Three warrants charged that he “has committed the offense of KRS 435.-025” and one, the “offense of KRS 189.-529.” The other warrants followed the same form. None of them named or described any offense, which is a condition precedent to validity prescribed by § 27 of the Criminal Code. While a warrant is not tested by the same strict rules as an indictment, it must comply with the statutory requirement that it shall state a public offense and describe it sufficiently to inform the accused person of the charge against him, especially where the warrant serves as an accusation upon which a trial is had, as in this case. Here, this man is being confined in jail for committing “the offense of KRS.” I do not know what that crime is. The warrants being void, the judgments thereon are likewise void. See Commonwealth for Use and Benefit of City of Paintsville v. Melvin, Ky., 256 S.W.2d 513 ; 22 C.J.S., Criminal Law, § 325. II. There was a form of trial on only one of these void warrants. There were judgments of conviction of five offenses and five maximum penalties to be served cumulatively— a total of four years certainly and more than five years if the defendant is unable to pay the fine assessed in one of the cases. Pic has been in jail since November 19, 1953. Assuming the pseudo trial was a real trial held under authority of law, it was only on the charge of negligently killing one person, and the penalty on that charge was satisfied two years ago. The record in the habeas corpus proceeding, other than the orders of the Quarterly Court showing merely the *747 several cases were docketed together, is the transcript of evidence in case “No. 70814” which was for the negligent homicide of Rosa Haury, as the majority opinion recites. No matter where the transcript was procured, it was agreed to be correct and was filed in the habeas corpus proceeding as being all the evidence heard by the trial commissioner. The fact that the defendant failed to object to the final judgments (which the majority opinion stresses) to my mind is wholly irrelevant. A defendant in a criminal case does not have to object to a judgment even where it is rendered in a proper trial. It is a novel thing for an appellate court to assume there was an agreement to try the five cases together simply because of silence of the record and because the accused was represented by competent counsel. The majority opinion refers to the opinion of the trial commissioner and his statement that he would “give the defendant a year in jail” on each charge of negligent homicide and fine of $500 for drunken driving. That statement (on which the joint judgment was based) appears in the transcript of the trial of the one case, namely, that for killing Rosa Haury. The part omitted from the quotation in the majority opinion, as shown by asterisks, is: “This is the only way we can stop what has been happening in Jefferson County in the last two or three days, and particularly from the time of this accident. No matter what I give the man, it can’t restore the lives of these people who have lost it by reason of his wanton negligence in driving an automobile on our highways while under the influence. One year on each case, and $500 fine for the drunken driving.” Suppose there had been five indictments pending against Brown, based upon the automobile wreck, and he had been regularly tried on one of them and it resulted in a verdict of guilty and the imposition of a penalty of one year in jail. Then, suppose the circuit judge had the clerk to enter judgments in the case tried and also four other judgments in the cases which had not been tried, and the defendant was committed.'to prison for the accumulating sentences of four years and 250 days. Would anyone have the temerity to contend that the' four additional judgments for which there had been no trial were not void ab initio, or that the prisoner was not entitled to be relieved of the judgments by the ancient right of habeas corpus? The query answers itself. A lawyer appointed and serving “on the spur of the moment” opened not his mouth. How can it be reasonably maintained that in such a case the prisoner is estopped from ever afterward claiming the inalienable right of every citizen, high or low, and irrespective of guilt or innocence, to be tried! according to due process of law ? That is a fundamental principle of justice deeply rooted in the federal and state constitutions and in the traditions and consciences of our people. The court, in my opinion, ought not assume there was a waiver, as the majority indicates. “It is as much a violation of due process to send an accused to prison following conviction on a charge on which he was never tried as it would be to convict him upon a charge that was never made.” The Supreme Court of the United States so spoke in a case where an information charged the accused with violating Section 2, and possibly Section 1, of a certain Arkansas penal statute. The instructions authorized and the jury found the defendant guilty of violating Section 2 and imposed a penalty of one year in prison. On appeal, the Arkansas Supreme Court found the evidence was not sufficient to sustain a conviction under that section of the statute but was sufficient to sustain a conviction under Section 1. On a writ of certiorari the United States Supreme Court reversed the judgment and made the above statement in the course of its opinion. Cole v. State of Arkansas, 333 U.S. 196 , 68 S.Ct. 514 , 92 L.Ed. 644 . Only a few months ago this court held the judgment void where a man was tried on a warrant charging the selling of beer to minors and at the conclusion of the evidence the justice of the peace rendered a judg *748 ment of guilty of another offense, namely, selling beer without a license, and then ordered the warrant changed to make it accuse him of that offense. This court held that even the circuit court could not entertain an appeal because the judgment was void. The reason for the decision was that the justice of the peace had no jurisdiction to enter such a judgment. Gross v. Commonwealth, Ky., 288 S.W.2d 353 . How insignificant are the proceedings and the result in that case compared to those in the case at bar !! III. I cannot bring myself to agree with the interpretation of the statute which authorizes the appointment of a trial commissioner o.f the county court that the Legislature intended to authorize the appointment of a commissioner to conduct trials in the quarterly court also. The statute does not authorize the appointment of a commissioner to assist the county judge in the performance of all his duties. Chapter 25 of the Statute is captioned, "County (Probate), Quarterly and Justices’ Courts.” Each of these courts is a separate constitutional tribunal. The chapter has four divisions, ofie ‘is' headed “General Provisions” (Sections 25.010 to 25.070, relating to all three courts); another “County Courts” (Sections 25.110 to 25.300, relating to jurisdiction, terms, etc. of the county court exclusively) ; another, “Quarterly Court” (Sections 25.410 to 25.510 relating to those courts); and the fourth, “Justices’ Court” (Sections 25.610 to 25.750 dealing with the same subjects in such courts). The section which authorizes a county judge to appoint a trial commissioner, KRS 25.280, is one of the sections dealing exclusively with county courts. The section must not be taken out of context. One provision of the statutes should normally be read in relation to its fellows. It is particularly so here where the Legislature explicitly captioned and placed it among sections dealing with the appointments of county judges pro tem and special county judges. At the same time the Legislature enacted similar provisions in those sections dealing with quarterly courts, and expressly authorized the appointment of a quarterly court judge pro tem and the selection of a quarterly court special judge. But it made no provision for a commissioner of the quarterly court. These titles and subtitles and this classification in the original bill (which was the bill enacting the Kentucky Revised Statutes) are not merely editorial or clerical insertions. The Legislature enacted the titles. The voice of the Legislature must be respected and regard be had for all this in interpreting the Act. 50 Am.Jur., Statutes, § 315. But we need not quibble over this point, for the question of judicial power is much graver. The Constitution in separate sections, 139 and 140, establishes the county courts and the quarterly courts as separate and independent tribunals. It merely-provides that the judge of the county .court shall also be the judge of the quarterly court. The Constitution, therefore, limits the two courts jointly to having one judge. A pro tem judge or a special judge of any court is a substitute judge to serve temporarily-with all the authority of the regular judge. Such temporary judges cannot sit in judgment where the regular judge is available or qualified. Mattingly v. Commonwealth, 310 Ky. 561 , 221 S.W.2d 82 . It may be well to take note of some of our previous cases which seem to be pertinent. The trial commissioner could not be regarded as a de facto judge for there can be no de facto officer where there is no legal office or court nor where a judicial office is not recognized by the Constitution. Hildreth’s Heirs v. McIntire’s Devisee, 1 J.J.Mar. 206 , 24 Ky. 206 ; 30 Am.Jur., Judges, § 100. Nor can there be a de facto judge where there is a de jure judge engaged in the actual performance of the duties of the office. 43 Am.Jur., Public Officers, § 496; 48 C.J.S., Judges, § 2. In the present case, the trial commissioner did *749 not believe that he was an acting judge for he knew his commission and his authority were merely that of a trial commissioner. This court has held that a pro tem judge of the county court may not take the place of the county judge at a session of the fiscal court even in his absence because it is a separate body, even, we may add, as is the quarterly court. Jefferson County Fiscal Court v. Grauman, 281 Ky. 608 , 136 S.W.2d 1102 . In Martin v. Stumbo, 282 Ky. 793 , 140 S.W.2d 405 , (a civil case decided before the Act of 1942 authorizing the appointment of a quarterly judge pro tem) it was held that a county judge pro tem (an officer who was authorized) could not act as a quarterly court judge pro tem. But as there was a statutory authority for a special quarterly court judge, the court regarded the so-called pro tem judge as a special judge irregularly appointed or selected; hence, he was acting in good faith under color of authority and was a de facto judge, which fact saved the civil judgment from being void. In Helton v. Commonwealth, Ky., 256 S.W.2d 14, 16 , a special circuit judge who had been commissioned to try a criminal case was held to have no authority to preside at a second trial, and the judgment was reversed on that ground. The court held that a person charged with crime is entitled to be tried in a lawfully constituted court which “includes a presiding judge, duly elected or appointed according to law.” By analogy, these cases hold that a county court trial commissioner cannot act as a quarterly court trial commissioner. IV. I now come to the most crucial objection to the majority decision. It is the approval of a system which, in my opinion, is subversive of the fundamental principles of the administration of justice. The decision approves a trial and condemnation of a citizen (a) by a person acting without legal, judicial authority as a judge who finds the facts, applies the law, fixes the penalty, and commits the defendant to prison, or (b) by a duly authorized court acting by proxy through such unauthorized person. Judicial power is vested exclusively by our Constitution in the courts established by it and none other. Section 135. The Legislature may not vest judicial power elsewhere nor create judicial offices nor divide the duties of those officers. 21 C.J.S., Courts, § 122. There can be no court without a judge. His presence to conduct the trial is essential unless temporary absence is consented to. This court, like all courts, has held a trial judge should under no circumstances absent himself from the bench without postponing the trial, for to constitute a court, there must be a judge possessed of certain qualifications ; and it is not enough for the court to call a member of the bar to sit in his place. Wheeler v. Commonwealth, 120 Ky. 697 , 87 S.W. 1106 ; May v. Commonwealth, 153 Ky. 141 , 154 S.W. 1074 ; Mills v. Commonwealth, 240 Ky. 359 , 42 S.W.2d 505 . See for full consideration, Ellerbee v. State, 75 Miss. 522 , 22 So. 950 , 41 L.R.A. 569 . A judicial officer must exercise power in person. Litigants, especially those accused of crime, have the right to have their cases tried by a court held by a judge duly chosen to discharge judicial functions. A judge may not delegate judicial authority or the performance of judicial acts to another person, even with the consent of the parties. There can be no such thing as a deputy judge. 11 Am.Jur., Constitutional Law, § 201; 30 Am.Jur., Judges, § 31; 48 C.J.S., Judges, § 45; 16 C.J.S., Constitutional Law, § 166. A citizen charged with crime has the constitutional right to have the judge who tries and condemns him see the witnesses face to face and hear their testimony in person. Trial by proxy is abhorrent to my conception of judicial procedure just as marriage by proxy shocks my conception of morality. *750 It has long been recognized'that in civil cases commissioners may be appointed to assist the court by taking the evidence and submitting a transcript thereof to the judge, with a report of their opinions and recommendations as to the proper disposition of the cases. In such capacity, a commissioner does not usurp or exercise judicial power. 11 Am.Jur., Constitutional Law, § 205. What he does is always subject to exceptions. Being fully informed of the contents of the record, the court may accept or reject the recommendation of the commissioner, and the judgment is always that of the court itself upon a de novo review of the record. 21 C.J.S., Courts, § 133. In the present system neither the statute nor the appointment of the trial commissioner provides for the consideration of the record by the judge, even if it were proper in a criminal case to adjudge a man guilty upon a stenographer’s transcript. Nor is there any provision for objections or exceptions to be filed by the accused person such as is provided in the practice of civil cases. No criterion for the judge is set up upon which approval or disapproval must rest. There was no action taken in these cases except the perfunctory signing of the orders of the day by the judge. I am satisfied he had no knowledge whatever of the evidence. This is proved by the fact that the transcript filed in the circuit court on the habeas corpus proceeding was obtained from a private and unofficial source. V. The claim of necessity for such so-called courts because of the volume of work and the impossibility of one judge doing all of it cannot justify the system. The response to this claim is to point to the courts of justices of the peace established by the Constitution and vested by the Legislature with the samé'powers and jurisdiction as the county courts and the quarterly courts. There are several such justices in Jefferson County, elected by the people and paid salaries instead of receiving' fees dependent upon the conviction of perso’nS' charged with ' criminal offenses.' KRS 64.250. Hence, they are qualified to try criminal cases, and it is their duty to conduct criminal trials. VI. Finally, I may take notice of the implications of waiver contained in the majority opinion. It is the general rule, observed particularly in the federal courts, that a judgment rendered against an accused person without due process of law is void; but this court has intimated that habeas corpus does not lie merely because due process has been denied. I emphasize that these intimations must be limited to errors of practice or procedure for which there is a right of appeal, or in a few instances of little consequence. These intimations cannot apply to the absolute denial of a trial and conviction which were not according to the fundamental and constitutional processes. We have recently held that justices of the peace who receive compensation only in cases of conviction have no jurisdiction to try criminal cases and the defendant’s failure to object cannot confer jurisdiction. Roberts v. Noel, Ky., 296 S.W.2d 745 . The present case concerns questions that go to the constitutional existence of a judicial tribunal, and the majority opinion approves the exercise of judicial power by proxy — -not merely to the failure to observe collateral or incidental rights of the accused. The proceeding, in my opinion, was void from start to finish, hence, the appellant was entitled to have the circuit court so adjudge on the habeas corpus writ. I close this dissent with the words of Justice. Whitfield in Ellerbe v. State, 75 Miss. 522 , 22 So. 950 , 952, 41 L.R.A. 569 , 574: “Disregard of fundamental right in the" case of the guiltiest defendant, his conviction in violation of settled constitutional and legal safeguards, intended for the protection of all, are not things ’which-'affect the particular *751 defendant in a given case alone, but, in their disastrous and far reaching •consequences, involve, in future trials, the innocent and guilty alike, subvert justice, and disorganize society. Guilt should be punished certainly, and con-•dignly, most assuredly; but guilt must be manifested in accordance with the law of the land. Else some day the innocent, who are sometimes called to answer at the bar of their country, may come to find themselves involved in a common ruin, deprived of the legal trial necessary to the vindication of their innocence.” I am authorized to say Judge HOGG concurs in the dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767720. Public record. Not legal advice.