Petition — Johnson v. Meigs

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

We-si t

No.

DAVID RONZELL JOHNSON - - _ Petitioner

V.

HENRY MEIGS, JUDGE,

FRANKLIN CIRCUIT COURT

COMMONWEALTH OF KENTUCKY Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

WILLIAM E. JOHNSON

MICHAEL L. JUDY

Johnson, Judy & Gaines

326 West Main Street

Prank‘ort, Kentucky 40601

ROBERTS PRINTING CO., FRANKFORT, KY.

CT ee

TABLE OF CONTENTS

Page

TABLE OF CITATIONS ................... 1

Grameen BOW ........................ 1-2

i ee er 2

QUESTIONS PRESENTED ...........___. 2

CONSTITUTIONAL PROVISIONS

LO Bag le Jee 2-3

STATEMENT OF THE OASE............. 3

I. NATUREOF THECASE......... 3

II. DECISION OF THE COURT

ae gl 3-4-5-6

III. COURSE OF THE

PROCEEDINGS ................ 6-7-8-9

REASONS FOR GRANTING THE WRIT. 9.20

"ea Sa a 20-21

PROOF OF SERVICE ...................... 22

EE hl COO

Cases :

(it)

TABLE OF CONTENTS

Page

Ashe v. Swenson, 397 US 436, 25 L Ed 24

Gap, SO DH OE TED CRF O) sinc ciccse ences 9

Brown v. Ohio, .... US ....,53 L Ed 2d

Bees Oe We MOUS i hana civ vetuenvecls re)

Harris v. Oklahoma, .... US ...., 58 L

Ed 1054, 97 S Ct (1977) ..............5. 9-10

Harris v. Washington, 404 US 55, 30 L Ed

2d 212, 92 S Ct 188 (1971) .............. 11

Turner v. State of Arkansas, 407 US 366,

32 L Ed 2d 798, 92 S Ct 2096 (1972) .... 12

Allen v. City Court of Ithaca (1962)

33 Mise 2d 356 224 NYS 24 1018 ........ 17

Brougher v. Allen, Ky. 462 SW 2d 187

CE cs ck theEny se ecdbeeONEeterc...

Cardenas v. Superior Court of Los Angeles

Oounty, (1961) 56 Cal. 2d 273, 14 Oal.

2d 273, 14 Cal Rptr 657, 363 P. 2d 889,

SE cia eaas cae eA eee <s 17

City of Lexington v. Cox, Ky. 481 8.W. 2d

ee I ie Win 'in'es v'e'WsaRWae cxaeececicve 19

Ourry v. Superior Court, (1970) 2 Cal.

3d 707, 87 Cal. Rptr 361, 470 P 24345 .... 17

Jackson v. Superior Court of San Diego

County (1937) 10 Cal 2d 350, 74 P 2d

2 ee. eee

—~) wa ee Ce ew ee ener es

- Ot ergEee > ae

Cases :

Mack v. Court of General Sessions (1961)

14 App. Div 2d 97. 217 NYS 8d 423 ......

Markiewies v. Black, (1958), 139 Colo. 128,

330 P. 2d 539, 75 ALR 2d 678 ............

McCabe v. Brox County Court (1960) 24

Mise 2d 472, 199 NYS 2d 2241 ..........

Murphy v. Thomas, Ky., 296 SW 2d 469

SE do gh ow naw Gh eRe a eek eso

Richard M. v. Superior Court, (1971) 4

Cal. 3d 370, 98 Cal. Rptr 752, 482 P 2d

Ef oo wineiatihg GE GIaIG 4 hile a 6 aia Khe 6 beets

State ex rel Anderberg v. Strawn (Fla App

1975) 307 So 2d 213, quashed

(Fla) 332 So 2d 601 ............... ie

State ex rel Hand v. Lane (Fla App,

1968) 209 So 2d 873... 0... eee cee eee.

State v. Harris (1970) 2 Wash 272, 469

PN ae ice eh alindea ten kknskes

State ex rel James v. Williams (Fla App,

- jie Le eee eer

State ex rel Williams v. Grayson, (Fila.

1956), 90 So 2d 710, 63 ALR 2d 777 ......

State ex rel Zirk v. Muntsing, (1961) 146

W.Va. 878, 122 SE 2d 831, 94 ALR 2d

Sa kek Su bad whine Sia ee de cenas exeda

Tuite v. Shaw (1975) 49 App Div 2d 737,

RT RE 86 6 606d s Sha cecedevcevnss

17

ee

(iv)

Weaver v. Schaaf (Mo., 1975) 520 SW

2d 58

STATUTES:

MPO TLOD sib cites welt.

ee OD och ie ie adatbiee us ba

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

DAVID RONZELL JOHNSON - - Petitioner

V.

HENRY MEIGS, JUDGE,

FRANKLIN CIRCUIT COURT

COMMONWEALTH OF KENTUCKY Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

The petitioner, David Ronzell Johnson, respect-

fully prays that a writ of certiorari issue to review the

order of the Supreme Court of Kentucky entered on

May 2, 1978.

ORDER BELOW

The order of the Supreme Court of Kentucky af-

firming the Kentucky Court of Appeals’ denial of the

petitioner’s plea for a Writ of Prohibition without a

)

hearing on the merits was entered on May 2, 1978. (Ap-

pendix, hereinafter App., p. 1a).

JURISDICTION

The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

I. Whether the constitutional provisions of dou-

ble jeopardy and the principles of res judicata and

collateral estoppel serve to bar the petitioner’s trial on

the charge of robbery where he has previously been

tried and acquitted on a charge of robbery-murder aris-

ing out of the same circumstances.

II. Whether a writ of prohibition is an appro-

priate remedy where a valid claim for double jeopardy

is made and was it therefore error for the Supreme

Court of Kentucky to deny the petitioner’s request for

a writ of prohibition.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Fifth Amendment:

‘‘No person shall be held to answer for a capital

or otherwise infamous crime, unless a presontment

or indictment of a grand jury, except in cases

arising in the land or naval forces, or in the mi-

litia, when in actual service in time of war or pub-

lie danger ; nor shall any person be subject for the

same offense to be twiced put in jeopardy of life

or limb; nor shall be compelled in any criminal

ease to be a witness against himself nor be de-

' prived of life, liberty or property, without due

process of law; nor shall private property be taken

for public use without just compensation.”’

United States Constitution, Fourteenth Amend-

ment, § One: .

‘All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state

wherein they reside. No state shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty,

or property without due process of law; nor deny

to any person within his jurisdiction the equal

protection of the laws.’’

STATEMENT OF THE CASE

i. NATURE OF THE CASE.

This is a petition for a writ of certiorari to the

Supreme Court of Kentucky to review a judgment and

order wherein that Court affirmed the judgment of

the Kentucky Court of Appeals denying the petition-

er’s application for a writ of prohibition to prevent

further proceedings against him on the grounds that

his acquittal of the charge of robbery-murder on No-

vember 7, 1977 bars any subsequent trial or conviction

of robbery which arose out of the same circumstances.

II. DECISION OF THE COURTS BELOW.

On May 2, 1978, the Supreme Court of Kentucky

affirmed a prior judgment of the Kentucky Court of

Appeals denying the petitioner’s writ of prohibition.

The net effect of this ruling would permit the Com-

4

monwealth of Kentucky to again attempt to try the

petitioner upon a charge of aiding, counselling or at-

tempting to aid another person in the commission of an

offense of robbery, irrespective of the petitioner’s

previous acquittal upon the charge of aiding, coun-

selling or attempting to aid another person committing

the offense of robbery-murder arising out of the same

incident. The Supreme Court of Kentucky ruled that

the jury’s verdict of not guilty of robbery-murder did

not render any binding decision or finding upon the

robbery count. Under the circumstances of this case,

the Supreme Court held that the double jeopardy clause

does not prevent a retrial of the robbery count after

there was a declaration of a mistrial upon the robbery

charee when it was first tried.

The order of the Kentucky Court of Appeals which

was affirmed by the Supreme Court was an Order De-

nying Motion For Writ Of Prohibition which was en-

tered on February 23, 1978. (App. p. 3a). The Court

of Appeals of Kentucky provided no basis for its de-

nial of the writ of prohibition, other than to indicate in

its order that it was sufficiently advised. -

The petitioner’s appeal to the Kentucky Court of

Appeals was initiated after the respondent, Judge

Henry Meigs, Circuit Judge of the 48th Judicial Dis-

trict in the Commonwealth of Kentucky, entered an

order on the 19th day of December, 1977 which over-

ruled and denied the petitioner’s motion to dismiss

Count IV (aiding, counseling and attemptng to aide

in first degree robbery) of Indictment 7930 which was

returned by a Grand Jury in Franklin County on the

2nd day of May, 1977. (App. 4a-Ta). The indictment

charged a co-defendant, Dwight Hubert Davis, with

xt

»”

the offense of robbery in the first degree in Count I

and the offense of robbery-murder in Oount II. The

petitioner, David Ronzell Johnson, was charged in

Count III with the offense of aiding, counselling or

attempting to aid Dwight Hubert Davis in committing

the offense of robbery-murder. Further, the petitioner

was charged in Count IV with aiding, counselling or

attempting to aide Dwight Hubert Davis in committing

the offense of robbery in the first degree. A copy of

the applicable Kentucky Statutes is set forth in the

appendix. (App. p. 8a-10a). The co-defendant,

Dwight Hubert Davis, pled guilty to the charges con-

tained in the indictment prior to the trial of this

action.

A trial was held on November 7, 1977 in the F'rank-

lin Circuit Court, Frankfort, Kentucky. Henry Meigs,

Circuit Judge, presided. Following the presentation

of evidence, arguments of counsel and instructions on

the law of the case, the jury returned a verdict of not

guilty upon the charge of aiding, counselling or at-

tempting to aide in the commission of the robbery-

murder (Count III). The jury further announced

that they could not agree upon a verdict concerning

the charge of aiding, counselling or attempting to aide

in the commission of first degree robbery (Count IV).

Therefore, the Court dismissed Count IIT of the in-

dictment and declared a mistrial as to Count IV of the

indictment. (App. p. lla-13a).

The day following the entry of the trial order and

judgment, the petitioner filed his motion to dismiss

Count IV of the indictment upon the grounds that the

jury verdict of not guilty concerning the robbery-mur-

6

der necessitated a dismissal of the charge of first de-

gree robbery. (App. p. 14a-16a). This motion was

subsequently overruled and denied by the Franklin

Circuit Court Judge and the matter was assigned for

trial upon a day certain. (App. p. 17a). Subsequent

thereto, continuances have been granted until an order

has been recently entered assigning this cause for trial

by jury on Tuesday, July 18, 1978 at the hour of 10:00

a.m. (App. p. 18a).

III. COURSE OF THE PROCEEDING.

On April 22, 1977, the co-defendant, Dwight Hu-

ber! Davis, robbed Long John Silvers Seafood Shoppe

which is located on the Versailles Road in Frankfort,

Franklin County, Kentucky. During the course of this

robbery, Dwight Hubert Davis shot and killed Donald

Botts, an employee who was working on the premises

after the restaurant had closed for the evening. Shortly

after the commission of these acts, the co-defendant,

Dwight Hubert Davis, was stopped in Franklin County,

Kentucky by law enforcement officials in the vehicle

of the petitioner, David Ronzell Johnson. The peti-

tioner, David Ronzell Johnson, freely and voluntarily

advised the city of Frankfort police officials of each

event which had taken place earlier in the evening

concerning the robbery and shooting at Long John

Silvers. The petitioner assisted the law enforcement

officials in recovering valuable items of evidence which

were needed to arrest Dwight Hubert Davis.

After he had assisted the law enforcement officials,

the petitioner was arrested for aiding, counselling and

attempting to aide Dwight Hubert Davis in the rob-

bery of the Long John Silvers Seafood Restaurant

‘

and the murder of its employee, Donald Botts.

Thereafter, the petitioner was jointly indicted with

Dwight Hubert Davis for the robbery of the Long John

Silvers Seafood Restaurant and the murder of Donald |

Botts. The co-defendant Davis, who had entered the

premises without the petitioner and who robbed the

restaurant and killed the employee was indicted for

capital murder and for robbery in the first degree.

Prior to the trial, Dwight Hubert Davis entered a plea

of guilty to the murder and robbery charges.

At the trial, there was no evidence that the peti-

tioner, David Ronzell Johnson, entered the restaurant.

He was indicted in Counts III and IV of the indict-

ment of aiding, counseling and attempting to aide in

the robbery-murder and first degree robbery. In both

counts it was alleged that Dwight Hubert Davis, dur-

ing the course of the robbery, caused the death of Don-

ald Botts. The evidence at the trial substantiated that

Davis killed Donald Botts during the course of his

robberv of the Long John Silvers Seafood Shonpe.

It was undisputed that the petitioner, David Ron-

zell Johnson, worked at Long John Silver’s Seafood

Shoppe, while attending Kentucky State University.

It was undisputed that Dwight Hubert Davis was a

roommate of David Ronzell Johnson. The evidence

also indicated that Dwight Hubert Davis had been as-

signed to room with the petitioner. Further, Dwight

Hubert Davis had a criminal record which was un-

known to the petitioner. The record further

clearly indicates that Dwight Hubert Davis had been

assigned to room with the petitioner. The record fur-

ther clearly indicates that Dwight Hubert Davis had

ei tia ali aa aia

&

requested that the petitioner take him to Long John

Silvers Seafood Shoppe in order that Davis could ob-

tain an application for employment at the restaurant.

On the evening of the robbery and murder, the peti-

tioner drove Dwight Hubert Davis to Long John Sil-

vers Seafood Shoppe. The petitioner waited in his

vehicle while Dwight Hubert Davis went into the res-

taurant to obtain the employment application. In-

stead of securing an employment application, Dwight

Hubert Davis pulled out a concealed weapon after he

had entered the premises and proceeded te rob the res-

taurant of proceeds which had been made during the

day. Tt was during the course of this robbery that

Donald Botts, an employee and assistant manager,

was shot and killed.

There was a dispute in the evidence as to whether

the petitioner knew that Dwight Hubert, Davis in-

tended to rob the premises. The petitioner testified

that Davis had requested that the petitioner take him

to Long John Silvers Seafood Shoppe to secure an ap-

plication for employment. He testified that he did

not know that Dwight Hubert Davis intended to rob

the premises or that he had a weapon on his person.

The petitioner testified it was not until] Dwight Hubert

Davis returned from the restaurant and demanded

that the petitioner drive him away that he became

frightened and realized what Dwight Hubert Davis

had done.

Prior to the trial of this action, the petitioner’s

counsel moved the Court to require the Commonwealth

to elect whether the appellant would be tried under

Count ITI or Count IV of the indictment. This motion

was overruled and the case proceeded to trial on both

counts. As indicated, Dwight Hubert Davis pled guilty

te Counts T and IT of the indictment prior to the trial.

The petitioner renewed bis motion to dismiss the

counts of the indictment at the conclusion of the Com-

monwealth’s case and at the conclusion of the presen-

tation of his evidence. These motions were overruled.

The petitioner objected to both counts being submitted

to the jury and to the Court’s instruction to the jury

on both counts. These motions and objections were

overruled. Following its deliberation, the jury re-

turned a not guilty verdict as to the charges contained

in Count ITI (robberv-murder) but could not agree as

to a verdict on the charges contained in Count TV (first

degree robberv ).

REASONS FOR GRANTING THE WRIT

I. THE CONSTITUTIONAL PROVISION OF DOUBLE JEO-

PARDY AND THE PRINCIPLES OF RES JUDICATA AND

COLLATERAL ESTOPPEL SERVE TO BAR THE PETITION.

ER'S SECOND TRIAL ON THE CHARGE OF ROBBERY

WHERE HE HAS PREVIOUSLY BEEN TRIED AND AC.

QUITTED ON A CHARGE OF ROBBERY MURDER ARISING

OUT OF THE SAME CIRCUMSTANCES.

The constitutional provisions of the Fifth Amend-

ment to the Constitution of the United States of Amer-

ica as made applicable to the states by the Fourteenth

Amendment provide the protection to each individual

from twice being placed in jeopardy for the same of-

fense. The evolution of this principle through the

lahdmarked cases of Ashe v. Swenson, 397 US 436, 25

L Ed 24, 90 8 Ct .... 1189 (1970) to Brown v. Ohio,

.... US....,53L Ed 2d 187, 978. Ct. .... (1977) and

Harris v. Oklahoma, .... US ...., 538 L Ed 2d 108,

10

97 8. Ct. .... (1977), clearly demonstrates that any

future attempt to try and convict the petitioner on the

charge of first degree robbery is a violation of his con-

stitutional rights.

In addition, Kentucky Statutory Law as set forth

in KRS 505.040(2) also gives support to the proposi-

tion that the petitioner’s acquittal on the robbery-mur-

der charge bars any subsequent trial or conviction of

the first degree robbery charges arising out of the same

circumstances. That section reads as follows:

‘‘Although a prosecution is for a violation of a

different statutory provision from a former prose-

cution or for a violation of the same provision but

based on different facts, it is barred by the former

prosecution under the following circumstances:

(2) The former prosecution was terminated by a

final order or judgment which has not subsequent-

ly been set aside and which required a determina-

tion inconsistent with any fact necessary to a con-

viction in the subsequent prosecution; .. .”’

In the commentary following this section, the fol-

lowing applicable example is given:

‘‘As an example as how this would work, we may

take the case of an injury caused by allegedly

reckless driving by D. Suppose that D is first

charged with reckless driving, and the case results

in an explicit determination that, under all the

circumstances, D was not reckless. If he is later

charged with manslaughter, which requires proof

of recklessness, he would be entitled to an acquit-

tal.”’

— EES SS

11

Thus, in order for the petitioner to be convicted

of robbery in the first degree, every element necessary

to establish robbery-murder would have to be proven;

i.e. voluntary participation, aiding, counseling, or at-

tempting to aide; that a robbery occurred and that

physical force was used upon Donald Botts by shooting

him. Thus, there is no inconsistent fact between the

robbery-murder charge and the first degree robbery

charge.

The landmarked cases aforementioned dealt di-

rectly with and are dispositive of the issue at hand. In

Ashe v. Swenson, supra, six men were engaged in a

poker game which was robbed by three or four gun-

men. The defendant was charged with robbery of one

of the players. At his trial, he was acquitted. Six

weeks later he was tried for the robbery of another

player and convicted. The Supreme Court of Mis-

souri affirmed the conviction, holding that a plea of

former jeopardy must be denied. A collateral attack

upon the conviction in the state court four years later

was also unsuccessful. A habeas corpus proceeding

then reached this Court. It was held by this Court that

since the single rationally conceivable issue in dispute

before the jury was whether the defendant was one of

the robbers, the federal rule of collateral estoppel,

which is embodied in the Fifth Amendment’s guaranty

against double jeopardy, made the second trial wholly

impermissable.

Next, this Court considered the issue in Harris v.

Washington, 404 US 55, 30 L Ed 2d 212, 92 S Ct 183

(1971). There, the defendant was tried in a Washing-

ton State Court for the murder of one of two persons

lo

killed by the explosion of a bomb which had been sent

through the mail. He was acquitted of the charge. The

state then subsequently prosecuted the defendant for

the murder of the other person and for assault of an-

other person injured by the bomb. After granting

certiorari, this Court held that collateral estoppel in

criminal trials was an integral part of the constitutional

guaranty against double jeopardy and that this con-

stitutional guaranty applied in the present case, ir-

respective of whether the jury considered all relative

evidence, and irrespective of the good faith of the state

in bringing suecessive prosecutions.

This Court considered a very similar case to this

one on application for a writ when it considered Tur-

ner v. State of Arkansas, 407 US 366, 32 L Ed 2d 798,

92 S Ct 2096 (1972). There, the petitioner was charged

with ‘‘unlawfully, willfully, feloniously and violently”’

taking from an individual a sum of money, while the

individual had been a participant in a poker game and

then murdering the individual. The petitioner was

found not guilty of the charge of murder. He was then

indicted for robbery of the same decedent. His at-

tempts in the state court to dismiss the second indict-

ment were unsuccessful. On Certiorari, this Court

reversed and remanded the case. It was held that this

issue was controlled by Ashe v. Swenson, and that the

double jeopardy clause of the Fifth Amendment pre-

vented the petitioner’s retrial. This Court, at pages

801-802 of the Lawver’s Edition Volume, stated:

‘*. .. the state has stipulated that the robbery and

murder arose out of ‘the same set of facts, cir-

cumstances, and the same occasion.’ The crucial

question, therefore is what iasues a general ver-

13

dict of acquittal at the murder trial resolve. The

jury was instructed that it must find petitioner

guilty of first degree murder if it found that he

had killed the decedent Yates either with premedi-

eation or unintentionally during the course of a

robbery. The jury’s verdict thus necessarily

means that it found petitioner not guilty of the

killing. The State’s theory, however, is that the

jury might have believed that petitioner and his

brother robbed Yates but that his brother actually

committed the murder. This theory is helied by the

actual instructions given the jury. Had the jury

found petitioner present at the crime scene, it

would have been obligated to return a verdict of

guilty of murder even if it believed that he had

not actually pulled the trigger...”

Applying this case to the issue presented in this

petition for a writ of certiorari, we have the following

resolution. Had the jury believed that David Ronzell

Johnson, with the intention of promoting or facilitat-

ing the robbery, aided, counseled or attempted to aide

Dwight Hubert Davis, it would have been obligated to

return a verdict of robbery-murder under Instruction

No. 1 which was given at the trial of this action. There-

fore, since the jury found David Ronzell Johnson not

guilty of murder during the course of the robbery, it

follows that the petitioner cannot be tried again under

the same set of facts and circumstances for robbery in

the first degree.

The petitioner contends that both the Kentucky

Court of Appeals and the Supreme Court of Kentucky

failed to properly apply the standards set forth by this

Court in Brown v. Ohio, supra, and Harris v. Okla-

| | ;

14

homa, supra. In Brown v. Ohio, the defendant Brown

was arrested nine days after he had stolen an automo-

bile. He pled guilty to a misdemeanor charge of joy-

riding. Thereafter, he was charged with the felony

auto theft based upon his original taking of the auto-

mobile. The trial court rejected the defendant’s plea

of double jeopardy. Thus, the defendant entered a

guilty plea and appealed. The Ohio Court of Appeals

affirmed stating that the two prosecutions were based

on separate acts and thus the double jeopardy clause

did not bar the second prosecution.

This Court reversed the Ohio Courts on this mat-

ter. In discussing the double jeopardy clause, this

Court noted at page 194 of the Lawyers’ Edition Vol-

ume as follows:

‘The double jeopardy clause ‘protects against a

second prosecution for the same offense after ac-

quittal. It protects against a second prosecution

for the same offense after conviction. And it pro-

tects against multiple punishments for the same

offense.’ ”’

The prosecution in this case, as in the Brown case, con-

tends that robbery-murder and first degree robbery are

different prosecutions and that being distinguishable,

an acquittal on the one does not bar conviction on the

other. However, the fact that they have different

names, statute numbers or penalties does not necessar-

ily distinguish them when viewed in light of the double

jeopardy clause. In Brown, this Court applied the

established Blockburger test:

‘The applicable rule is that where the same act or

transaction constitutes a violation of two distinct

15

statutory provisions, the test to be applied to de-

termine whether there are two offenses or only

one, is whether each provision requires proof of a

fact which the other does not...”

Thus, if the elements of the second charge are the same

as those litigated in the first charge, the disposition

of the first charge necessarily bars the successive prose-

cution. In Brown, this Court found that the clements

found in joyriding required no proof beyond that which

is required for conviction of the greater offense of auto

theft. This Court continued at page 196:

“Phe greater offense is therefore by definition

the ‘same’ for purnoses of double jeopardy as any

lesser offense included in it.

‘““This conclusion merely restates what has been

this court’s understanding of the .... rule that

‘‘where ...a person has been tried and convicted

for a crime which has various incidents included

in it, he cannot be a second time tried for one of

those incidents without being twice put in jeo-

pardy for the same offense.’’

In applying these principles to this petition, the

elements necessary to establish first degree robbery

had previously been litigated in the charge of robbery-

murder. These elements having been resolved in the

petitioner’s favor, they cannot be relitigated as an in-

cluded crime (first degree robbery) without twice

placing the petitioner in jeopardy for the same offense.

In Harris v. Oklahoma, supra, the defendant Har-

ris was first convicted of a felony murder arising out

16

of an armed robbery. Subsequently, he was tried and

convicted on a separate charge of robbery with a fire-

arm. In reversing the conviction, this court noted at

nage 1056 in the Lawvers’ Fdition Volume:

‘‘When as here, conviction for a greater crime,

murder, cannot be had without conviction for the

lesser crime, robbery with firearms, the double

jeopardy clause bars prosecutions for the lesser

crime after conviction for the greater one. (cases

cited) ... (A) person (who) has been tried and

convicted for a crime which has various incidents

included in it, . . . cannot be a second time tried

for one of those incidents without being twice put

in jeopardy for the same offense.’’ (eases cited).”’

Similarly, the petitioner herein who has been tried and

acquitted for the crime of murder-robbery cannot be

tried a second time for the incidental crime of robbery

in the first degree. This is hecause the elements which

are necessary to establish the basis of a conviction of

the robbery charge have already been resolved in favor

of the petitioner at the time he was acquitted of the

charge of robbery-murder. Therefore, his acquittal of

the robbery-murder charge bars by double jeopardy

the subsequent trial of first degree robbery since the

same arose out of the same cireumstanee and event.

The failure of the Supreme Court of Kentucky

and the Kentucky Court of Appeals to adhere to this

court’s development of the constitutional provision

relative to double jeopardy requires that a writ of cer-

tiorari be issued commanding that the matter be re-

viewed by this Court.

17

I. A WRIT OF PROHISITION IS AN APPROPRIATE

REMEDY WHERE A VALID CLAIM FOR DOUBLE JEO-

PARDY IS MADE AND IT WAS A SUBSTANTIAL ERROR

FOR THE SUPREME COURT OF KENTUCKY TO DENY THE

PETITIONER’S REQUEST FOR A WRIT OF PROHIBITION.

The petitioner herein contends that where the trial

court, the Kentucky Court of Appeals and the Supreme

Court of Kentucky failed to recognize that there is a

valid claim of double jeopardy in this proceeding, it is

incumbent upon this court to issue a writ of certiorari

to consider whether a writ of prohibition should he

ordered to prevent this matter from heing fuither

litigated.

It is well recognized and even the trend in most

jurisdiction that a writ of prohibition is a proper rem-

edv where a constitutional claim of double jeopardy

is validly made. Cardenas v. Superior Court of Los

Angeles County, (1961), 56 Cal. 2d 273, 14 Cal. 2d 273,

14 Cal. Rytr. 657, 363 P. 2d 889, 100 ALR 2d 371: Mar-

kiewiez v. Black, (1958), 139 Colo. 128, 330 P. 2d 539,

75 ALR 2d 678: State ex rel. Williams v. Grayson (Fa,

1956) 890 So 2d 710, 63 ALR 2d 777; State er rel. Zirk

v. Muntzing, (1961) 146 W.Va. 878, 122 SE 2d 851, 94

ALR 2d 1033; McCabe v. Bronx County Court (1960)

24 Mise 2d 472, 199 NYS 2d 241; Mack v. Court of Gen-

eral Sessions (1961) 14 App. Div. 2d 98, 217 NYS 2d,

423; Allen v. City Court of Ithaca (1962) 33 Mise 2d

356, 224 NYS 2d 1018; Curry v. Supreme Court, (1970)

2 Cal. 3d 707, 87 Cal. Rptr. 361, 470 P. 2d 345; Richard

M. v. Superior Court, (1971) 4 Cal. 3d 370, 93 Cal.

Rptr. 752, 482 P. 2d 664; State ex rel James v. Wil-

liams, (Fla. App. 1964) 164 So. 2d 873; State ex rel

Hand v. Lane (Fla. App. 1968) 209 So. 2d 873; State

18

v. Harris, (1970) 2 Wash 272, 469 P. 2d 937, State ex

rel. Anderberg v. Strawn (Fla. App. 1975) 307 So 2d

213, quashed (Fla) 332 So. 2d 601; Tuite v. Shaw 49

(1975) 49 App. div. 2d 737, 372 NYS 2d 219; Weaver

v. Schaaf (Mo. 1975) 520 SW 24d 58.

The constitutional grant of freedom from double

jeopardy is an assertion of immunity which when valid-

ly raised terminates even the risk of a second trial. To

permit the trial court to proceed to try the petitioner a

second time under a valid plea of double jeopardy

would be to permit the trial court to exceed and abuse

its jurisdiction.

The constitutional guaranty against double jeo-

pardy is so important that it represents something

more than a ‘‘defense’’ to a criminal prosecution. As

the Court in McCabe, supra, noted at page 245 in the

New York Supplement:

‘‘The plea of double jeopar“v is not a defense in

the ordinary sense. For a defense such as alibi,

self-defense, lack of intent, etc., is aimed at estab-

lishing the defendant’s innocence of the crime

charged and of necessity must be oo at the

trial; whereas the plea of double jeopardy .. . is

an assertion of a constitutional grant of immun-

ity. Therefore, it is more than a defense. The act

which terminates the first trial germinates into

life the dormant seed of constitutional immunity

. The guarantee is that the pérson shall not be

subject to the risk of a second trial. Nor may this

protection be abridged or curtailed by holding that

a defendant may assert it during any stage of the

new trial. The immunity protects him against

cc tr

is

being subjected to another trial — any part of an-

othey trial. There is jeopardy so long as the in-

dictment with the same charge is outstanding and

pending. Therefore, reason and logic indicates

that it is permissible to raise the plea of double

jeopardy, if a person chooses, before the com-

mencement of another trial and in whatever foruin

is proper and available.”’

Thus, if the double jeopardy guarantee is that a per-

son shall not be subject to the risk of a second trial,

then the trial court is without jurisdiction to try the

movant upon the charge of robberv in the first degree.

Therefore, if the trial court has no jurisdiction, a writ

of prohibition: will lie. Murphy v. Thomas, Ky., 296

S W2d 469 (1956) : City of Lexington v. Coz, Ky., 481

SW 2d 645 (1972).

The prosecution contends that David Ronzell John-

son has an adequate remedy by appeal. The mere fact

that there is a remedy by appeal available does not pre-

clude the issuance of a writ of prohibition. Brougher

v. Allen, Ky., 462 SW 2d 187 (1970). The criteria is

whether in light of the facts of the case the remedy

through appeal is adequate.

In a criminal case involving the petition of a

twenty year old man for the protection of his consti-

tutional guarantees of double jeopardy, res judicata

and collateral estoppel, the remedy of waiting for an

appeal is not adequate. The petitioner, a hardwork-

ing, young black man without any previous felony rec-

ord is entitled to a better and quicker resolution of

this matter. To permit a second trial herein before

deciding whether the trial court even has jurisdiction,

4 i ) oii

20

would subject the petitioner unnecessarily to a delay

in his freedom from the confines of the charges of the

indictment. It would unnessarily necessitate his ex-

pending substantial sums to prepare for and to present

his defense. It would unnecessarily subject him to

the emotional] strain and trauma he has once endured.

It would unnecessarily expose him to the risk of im-

prisonment between trial and appeal decision. It would

unnecessarily cause him to wait for a final resolution

of this matter until an appeal can be perfected, briefed,

argued and decided. As the Court noted in Jackson v.

Superior Court of San Diego County, (1987) 10 Cal.

24 350. 74 P. 2d 248, at page 245,

‘*... while the remedy at law is plain, it is neither

speedy nor adequate . . . in view of the fact that in

its final analysis the question before us is one of

jurisdiction of the respondents to again place pe-

titioners on trial for the offenses charged in the

indictment found against them.’’

Similarly, the administration of justice and the pro-

tection of constitutional guarantees proscribes that the

questioned double jeopardy — jurisdiction be resolved

hy this Court prior to the second trial of the movant.

CONCLUSION

The petitioner’s acquittal at the first trial of the

charge of robbery-murder bars any subsequent trial or

conviction of robbery in the first degree growine out

of the same circumstances. The subsequent attempt to

try this petitioner upon the charge of first degree rob-

bery is barred by the constitutional protection of dou-

ble jeopardy and the principles of res judicata and col-

21

lateral estoppel. A writ of prohibition is the proper

remedy to bar this unconstitutional attempt to try the

petitioner again on the charge of first degree robbery.

The Supreme Court of Kentucky, Kentucky Court of.

Appeals and Trial Court having failed to recognize

the true application of the principles discussed herein,

it is therefore necessary for this court to review the

decisions of the highest court in this Commonwealth

and to issue a Writ of Certiorari to the Supreme Court

of Kentueky. If the decision of the Supreme

Court of Kentucky is permitted to stand. the provis-

ions and applications of the principles of double jeo-

pardy, res judicata and collateral estoppel will not be

fairly applied within the Commonwealth of Kentucky

and the administration of justice will not be properly

dispensed to the petitioner in this instance.

The petitioner pravs that this honorable court

crant a review of this matter.

ae ully ie =,

, rae

Michael L. Judy ZA

Johnson, Judy & Gaines

Attorneys at Law

326 West Main Street

Frankfort, Kentucky 40601

Attorneys for Petitioner

sau atc a ica aman acacia aaa iii

22

PROOF OF SERVICE

I, Michael L. Judy, counsel for the petitioner

herein, hereby certifies that three copies of the fore- |

going brief were mailed, postage prepaid, to Hon. |

Henry Meigs, Judge, Franklin Circuit Court, the re-

spondent herein, and to his counsel, Hon. Ray Corns,

(‘commonwealth Attorney, Bridge Street, Frankfort,

Kentucky, postage prepaids an thisc2— day of J bey |

1978.

APPENDIX

en i

RENDERED: May 2, 1978

SUPREME COURT OF KENTUCKY

78-80-179-MR

DAVID RONZELL JOHNSON -- - Appellant

V. APPEAL FROM THE COURT OF APPEALS

OF KENTUCEKY—78-CA-27-0A

HENRY MEIGS, JUDGE,

FRANKLIN CIRCUIT COURT - - Appellee

MEMORANDUM OPINION PER CURIAM

AFFIRMING

An examination of the record discloses that the

pin which exploded the balloon of the murder count

was the dissatisfaction of at least some members of the

jury with the proof of the wantonness of Johnson’s

conduct. The unanimity of the jury’s verdict of not

guilty of murder and their inability to agree on any

verdict on the robbery count confirms that they made

no valid and binding findings on any issues common

to the murder and robbery counts. Under these cir-

cumstances the double jeopardy clause does not pre-

vent a retrial of the robbery count after declaration

of a mistrial. Cf. Turner v. Arkansas, 407 U.S. 366,

la

2a

369 (1972); Ashe v. Swenson, 397 U.S. 436, 438, 440

n. 4 (1970) ; Centers v. Commonwealth, Ky., 318 S.W.

2d 57 (1958). 3

The judgment of the Court of Appeals is affirmed.

All concur.

ATTORNEYS FOR APPELLANT:

William E. Johnson & Michael L. Judy

Johnson, Judy & Gaines

326 West Main Street

Frankfort, Kentucky 40601

ATTORNEY FOR APPELLEE:

Ray Corns

Commonwealth Attorney

Frankfort, Kentucky 40601

COMMONWEALTH OF KENTUCKY

COURT OF APPEALS

NO. 78-CA.27-0A

DAVID RONZELL JOHNSON - - Petitioner

V. ON PETITION FOR WRIT OF PROHIBITION

HENRY MEIGS, JUDGE,

FRANKLIN CIRCUIT COURT - — Respondent

ORDER DENYING MOTION FOR WRIT OF

PROHIBITION

BEFORE: MARTIN, Chief Judge, KEYNOLDS and

WILHOIT, Judges

The Court, having considered this original action

styled Motion for Writ of Prohibition, and the re-

sponse thereto, and being otherwise sufficiently advise,

ORDERS that the motion be and is hereby DENIED.

ENTERED: February 23, 1978.

/3/ Boyce F. Martin

Judge, Court of Appeals

No. 7930

COMMONWEALTH OF KENTUCKY

| INDICTMENT FOR

V8: DWIGHT HUBERT DAVIS

DAVID RONZELL JOHNSON

KRS 507.020 (1) (a) (b) (2) (b)

Capital Offense of Murder

515.020—Robbery in the First Degree

502.020—Liability for Conduct of

Another, Complicity

A TRUE SILL

/s/ Wm. B. Pickett

Foreman of the Grand Jury

Presented to the Franklin Cireuit Court by the Fore-

man of the Grand Jury in the presence of the Grand

Jury and filed in open Court this 2nd day of May,

1977.

/s/ James E. Collins

Clerk, Franklin Cireuit Court

BY: , Be.

Bond $100,000

/s/ Ray Corns

Commonwealth Attorney

48th Judicial District

4a

FRANKLIN CIRCUIT COURT

COMMONWEALTH OF KENTUCKY

V8: NO. 7930

DWIGHT HUBERT DAVIS

DAVID RONZELL JOHNSON - - Defendant

ERS 507.020 (1 b) (2) (b

re (1) yn Boy )—Capital

502.020—Class B Felony

The Grand Jury charges:

COUNT I

On or about the 22nd day of April, 1977, in Frank-

lin County, Kentucky,

the above named defendant, Dwight Hubert Davis,

did commit the capital offense of murder when, dur-

ing the commission of the offense of robbery in the

first degree, he intentionally caused the death of Don-

ald Botts by shooting him with a pistol at Long John

Silvers Seafood Shoppe, 166 Versailles Road, Frank-

fort, Kentucky.

COUNT II

On or about the 22nd day of April, 1977, in Frank-

lin County, Kentucky, the above named defendant,

Dwight Hubert Davis, did commit the offense of rob-

bery in the first degree when, in the course of com-

mitting theft at Long John Silvers Seafood Shoppe,

166 Versailles oRad, Frankfort, Kentucky, and which

armed with a deadly weapon, he used physical force

5a

6a

upon another person with intent to accomplish the

theft, thereby causing physical injury and death to

Donald Botts.

COUNT III

On or about the 22nd day of April, 1977, in Frank-

lin County, Kentucky, the above name defendant, David

Ronzell Johnson, with the intention of promoting or

facilitating the commission of the offense of robbery

in the first degree, did commit the offense of robbery-

murder by aiding, counselling, or attempting to aid

another person, Dwight Hubert Davis, in committing

the offense of robbery-murder, when under circum-

stances manifesting extreme indifference to human

life, he wantonly engaged in conduct which created a

grave risk of death to another person and thereby

caused the death of Donald Botts at Long John Silvers

Seafood Shoppe, 166 Versailles Road, Frankfort, Ken-

tucky,

COUNT IV

On or about the 22nd day of April, 1977, in Frank-

lin County, Kentucky, the above named defendant,

David Ronzell Johnson, with the intention of promot-

ing or facilitating the commission of the offense of

robbery in the first degree, did commit the offense of

robbery in the first degree by aiding, counselling, or

attempting to aid another person, Dwight Hubert

Davis, in committing the offense of robbery in the first

degree, when in the course of committing theft at Long

John Silvers Seafood Shoppe, 166 Versailles Road,

Frankfort, Kentucky, the other person, Dwight Hubert

Davis, while armed with a deadly weapon used physi-

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cal force with intent to accomplish the theft, thereby

causing physical injury and death to Donald Botts.

against the peace and dignity of the Commonwealth

of Kentucky.

A TRUE BILL

/s/ Wnm. B. Pickett

Foreman of the Grand Jury

WITNESSES: Detective Robert Courtney, Frank-

fort, Police Department, Frankfort, Ken-

tucky.

KENTUCKY REVISED STATUTES

Sec. 507.020 Murder

‘‘(1) A person is guilty of murder when:

(a) With intent to cause the death of another

person, he causes the death of such person or of a third

person; except that in any prosecution a person shall

not be guilty under this subsection if he acted under

the influence of extreme emotional disturbance for

which there was a reasonable explanation or excuse,

the reasonableness of which is to be determined from

the viewpoint of a person in the defendant’s situation

under the circumstances as the defendant believed them

to be. However, nothing contained in this section shall

constitute a defense to a prosecution for or preclude a

conviction of manslaughter in the first degree or any

other crime; or

(b) Under circumstances manifesting extreme

indifference to human life, he wantonly engages in

conduct which creates a grave risk of death of another

person. |

(2) Murder is a Class A felony, except that in the

following situations it is a capital offense:

(a) The defendant’s act of killing was inten-

tional and was for profit or hire;

(b) The defendant’s act of killing was inten-

tional, and occurred during the commission of arson in

the first degree, robbery in the first degree, burglary

in the first degree, or rape in the first degree;

(c) The defendant’s act of killing was inten-

tional and the defendant was a prisoner and the vic-

8a

pon eee ee

tim was a prison employe engaged at the time of the

act in the performance of his duties;

(d) The defendant’s act of killing was inten- |

tional and the death was caused through use of a de-

structive device, as defined in KRS 237.030(1) ;

(e) The defendant’s act or acts of killing were

intentional and they resulted in multiple deaths; or

(f) The defendant’s act of killing was inten-

tional and the victim was a police officer, sheriff or

deputy sheriff engaged at the time of the act in the

lawful performance of his duties.’’

KENTUCKY REVISED STATUTES

Sec. 502.020 Liability for conduct of another ;

complicity

(1) A person is guilty of an offense committed

by another person when, with the intention of promot-

ing or facilitating the commission of the offense, he:

(a) Solicits, commands, or engages in a conspir-

acy with such other person to commit the offense; or

(b) Aids, counsels, or attempts to aid such person

in planning or committing the offense; or

(ec) Having a legal duty to prevent the commis-

sion of the offense, fails to make a proper effort to do

BO.

(2) When causing a particular result is an ele-

ment of an offense, a person who acts with the kind of

culpability with respect to the result that is sufficient

for the commission of the offense is guilty of that of-

fense when he:

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(a) Solicits or engages in a conspiracy with an-

other person to engage in the conduct causing such re-

sult; or

(b) Aids, counsels, or attempts to aid another

person in planning, or engaging in the conduct causing

such result; or

(ec) Having a legal duty to prevent the conduct

causing the result, fails to make a proper effort to do

so.

KENTUCKY REVISED STATUTES

Sec. 515.020 Robbery in the first degree

(1) A person is guilty of robbery in the first

degree when, in the course of committing theft, he

uses or threatens the immediate use of physical force

upon another person with intent to accomplish the

theft and when he:

(a) Causes physical injury to any person who is

not a participant in the crime; or

(b) Is armed with a deadly weapon; or

(c) Uses or threatens the immediate use of a

dangerous instrument upon any person who is not a

participant in the crime.

(2) Robbery in the first degree is a Olass B fel-

ony.

—

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FRANKLIN CIRCUIT COURT

INDICTMENT NO. 7930

COMMONWEALTH OF KENTUCKY - Plaintiff.

V8. TRIAL ORDER AND JUDGMENT

DAVID RONZELL JOHNSON - .- _ Defendant

This action came on for trial on November 7, 1977.

The Commonwealth and the defendant announced

ready. Thereupon, the Court proceeded with the se-

lection of a jury. The following jury was impanelled

to try the case according to the law and the evidence:

George Smith Edward Newton James Dempsey

Ella Thomas David Noble Shirley Norfleet

Frances Anglin Bobbye Pierce Billy Hampton

Mary Hungate Joe Amodor Doug Baldwin

The Commonwealth Attorney made an opening

statement and this was followed by the opening state-

ment of the attorney for the defendant.

The Commonwealh then proceeded to the intro-

duction of testimony and exhibits. The Commonwealth

announced closed and the defendant, by counsel, made

a motion for a directed verdict of acquittal and for the

dismissal of the Indictment. This motion was over-

ruled.

The defendant introduced testimony through wit-

nesses on his behalf. The defendant announced closed.

The defendant then renewed his motion for a directed

lla

on

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12a

verdict of acquittal and for a dismissal of the Indict-

ment. This motion was overruled.

The defendant tendered certain instructions which

were marked and refused. The defendant further ob-

jected to the instructions given and stated his objec-

tions to the reporter. The Court then instructed the

jury as to the law of the case. The attorney for the

defendant then argued the case to the jury and this

was followed by argument of the Commonwealth At-

torney.

The jury then retired to the jury room to deliber-

ate the verdict:

‘‘We the jury, find the defendant not guilty un-

der Instruction No. 1.

/s/ Billy Hampton

Foreman

The jury further announced that they could not

agree upon a verdict under Instruction No. 2.

The Court accepted the verdict and orally stated

that the count in the indictment referred to in Instruc-

tion No. 2.

It is therefore ordered and adjudged as follows:

1. That Count III in Indictment No. 7930 is

hereby dismissed, with prejudice, pursuant to the jury

verdict of not guilty.

2. That a mistrial is hereby declared as to Count

IV in Indictment No. 7930 by reason of the failure of

the jury to be able to agree upon a verdict as to that

a oe

13a

Count.

3. It is further ordered that the charge set out in

Count IV of said Indictment is assigned for trial on

March 13, 1978.

4. On motion of the defendant, the defendant’s

bond is hereby reduced to the sum of $20,000.00.

This 14th day of November, 1977.

/s/ Henry Meigs

Judge, Franklin Circuit Court

HAVE SEEN:

/s/ Ray Corns

Commonwealth Attorney

/s/ William Johnson

Attorney for Defendant

Sider ck Hw on

ne ee ee eee Wer es De

cniues

FRANKLIN CIRCUIT COURT

CRIMINAL INDICTMENT NO. 7930

COMMONWEALTH OF KENTUCKY - Plaintiff

VS. NOTICE, MOTION, ORDER

DAVID RONZELL JOHNSON - - Defendant

You will kindly take notice hereby that the motion

set forth below will be brought on for hearing at the

next appointed motion hour of the Franklin Circuit

Court falling not less than five days from the date

hereof.

This 15th day of November, 1977.

SERVE:

Hon. Ray Corns

Commonwealth Attorney

Ole Y Complex

Bridge Street

Frankfort, Kentucky 40601

MOTION

Comes the defendant, by counsel, and moves the

Court to dismiss Count IV of the Indictment for the

reason that the jury verdict finding the defendant not

guilty of the crime of murder necessitates a dismissal

of the charge of robbery. The instructions as sub-

mitted to the jury required the jury to find that the

defendant had voluntarily aided and assisted Dwight

14a

——_

15a 16a

Davis in planning and carrying out the robbery. In The foregoing notice and motion was filed

order to convict the defendant of murder, the jury had in my office on the 15th day of November,

to find that the defendant had been guilty of wanton 1977, and one copy thereof together with the

conduct. In order for the jury to convict the defendant order assigning the hearing thereon was

of robbery, there must be a finding that he knew that served by mail on the person and at the ad-

Dwight Davis intended to use a deadly weapon. If he dress designated in the notice this 15th day

knew that Dwight Davis intended to use a deadly wea- of November, 1977.

pon in promoting and carrying out the robbery, then Je! Temic®. Collen

he would be guilty of murder if that weapon were used |

during the robbery. Since the jury found he was not Clerk, Franklin Cireuit Court

guilty of the crime of murder, it must logically follow

that he could not be found guilty of the crime of rob-

bery. The issue is now res adjudicata.

JOHNSON. JUDY & GAINES

By: /s/ William E. Johnson

Attorneys for Defendant

326 West Main Street

Frankfort, Kentucky 40601

ORDER

The motion hereinabove, which was filed in the

Office of the Clerk of the Franklin Circuit Court on

the 15th day of November, 1977, is hereby assigned for

hearing in the Court Room, Franklin County, Court-

house, 218 St. Clair Street, Frankfort, Kentucky, on

the 5th day of December, 1977, at the hour of 9:00.

/s/ Henry Meigs

Judge, Franklin Circuit Court

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FRANKLIN CIRCUIT COURT

INDICTMENT NO. 7930

COMMONWEALTH OF KENTUCKY - Plaintiff

V8: ORDER

DAVID RONZELL JOHNSON - - Defendant

The defendant having moved the Court to dismiss

Count IV in the Indictment for the reason that the

jury verdict finding the defendant not guilty of aiding

and abetting in the crime of murder necessitated a dis-

missal of the charge of aiding and abetting of an armed

robbery and the same having come before the Court

and the Court having heard argument of counsel and

being fully advised, IT IS HEREBY ORDERED that

said motion shall be and the same is hereby overruled,

to which the defendant objects and excepts.

So ordered this 19th day of December, 1977.

/s/ Wenry Meigs

Judge, Franklin Circuit Court

Division I

HAVE SEEN:

/s/ Ray Corns

Commonwealth Attorney

/e/ Michael L. Judy

Attorney for Defendant

17a

tis ait i geno

FRANKLIN CIRCUIT COURT

$7980

COMMONWEALTH OF KENTUCKY - Plaintiff

V8. ORDER

DAVID RONZELL JOHNSON - - Defendant

On motion of counsel for Commonwealth, this

cause is hereby assigned for trial at 10:00 A.M. Tues-

day, July 18, 1978, in the Circuit Court Room.

/s/ Henry Meigs

Judge, Franklin Circuit Court

HAVE SEEN:

/3/ Ray Corns

Counsel for Plaintiff

/s/ William Johnson

Counsel for Defendant

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