character defense in Kentucky

1976As said in McDaniel v. Commonwealth, 181 Ky. 766 , 205 S.W. 915 , 920: `* * * especially is some reasonable time for study and preparation required of an attorney who assumes the burden of representing an accused who is charged with a capital offense and whose life may be the penalty of any mistake or want of information on the part of his counsel.

1976As said in McDaniel v. Commonwealth, 181 Ky. 766 , 205 S.W. 915 , 920: `* * * especially is some reasonable time for study and preparation required of an attorney who assumes the burden of representing an accused who is charged with a capital offense and whose life may be the penalty of any mistake or want of information on the part of his counsel.

2023Id.

1966The conclusion we have reached in connection with-the second ground of appellant’s motion in no way limits or modifies the rule announced in Nelson that: “Adequate preparation by an attorney employed by one charged with a crime includes full consultation with his client, interviews with prospective witnesses, study of the facts and law applicable thereto, and the determination of the character of defense to be made and the policy to be followed during the trial.” Burton v. Commonwealth, Ky., 394 S.W.2d 933 (1965), more aptly fits the facts of the present case.

1945The criticism of such an instruction in the recent case of Benge v. Commonwealth, 298 Ky. 562 , 183 S. W. 2d 631 , seems not to be in keeping with the general weight of authority in this jurisdiction. • Judgment reversed, with directions to set it aside and for proceedings consistent with this opinion.

1945The criticism of such an instruction in the recent case of Benge v. Commonwealth, 298 Ky. 562 , 183 S. W. 2d 631 , seems not to be in keeping with the general weight of authority in this jurisdiction. • Judgment reversed, with directions to set it aside and for proceedings consistent with this opinion.

1940The entire court coincided with that conclusion — the members being Chief Justice Cardozo, and Justices Crane, Lehman, Kellogg, O ’Brien and Hubbs — the latter dissenting only because the court rejected the conclusion of the Virginia Supreme Court in the case of Eagle, Star & British Dominions Insurance Company v. Heller, 149 Va. 82 , 140 S. E. 314 , 57 A. L.

1940The entire court coincided with that conclusion — the members being Chief Justice Cardozo, and Justices Crane, Lehman, Kellogg, O ’Brien and Hubbs — the latter dissenting only because the court rejected the conclusion of the Virginia Supreme Court in the case of Eagle, Star & British Dominions Insurance Company v. Heller, 149 Va. 82 , 140 S. E. 314 , 57 A. L.

1939Appellants contend that it should have given the character of instruction, as to violation of the legal speed limit, indicated in Utilities Appliance Company et al. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 , as revised in the case of Nowak v. Joseph, 275 Ky. 470 , 121 S. W. (2d) 939 .

1939Appellants contend that it should have given the character of instruction, as to violation of the legal speed limit, indicated in Utilities Appliance Company et al. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 , as revised in the case of Nowak v. Joseph, 275 Ky. 470 , 121 S. W. (2d) 939 .

1939Appellants contend that it should have given the character of instruction, as to violation of the legal speed limit, indicated in Utilities Appliance Company et al. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 , as revised in the case of Nowak v. Joseph, 275 Ky. 470 , 121 S. W. (2d) 939 .

1939Appellants contend that it should have given the character of instruction, as to violation of the legal speed limit, indicated in Utilities Appliance Company et al. v. Toon’s Adm’r, 241 Ky. 823 , 45 S. W. (2d) 478 , as revised in the case of Nowak v. Joseph, 275 Ky. 470 , 121 S. W. (2d) 939 .

1934R. 969, and in the Marley opinion the “special instances” forming an exception to that general rule, is thus stated: “Where it is shown that the employee, although not at his regular place of employment, even before or after customary working hours, is doing * * * some duty incidental to the nature of his employment in the interest of, or under direction of, his employer.” The same' general rule qualified by the same character of exception was approved and applied by the Supreme Court of the United States in the case of Voehl v. Indemnity Insurance Co. of North America, 288 U. S. 162 , 53 S. C

1934R. 969, and in the Marley opinion the “special instances” forming an exception to that general rule, is thus stated: “Where it is shown that the employee, although not at his regular place of employment, even before or after customary working hours, is doing * * * some duty incidental to the nature of his employment in the interest of, or under direction of, his employer.” The same' general rule qualified by the same character of exception was approved and applied by the Supreme Court of the United States in the case of Voehl v. Indemnity Insurance Co. of North America, 288 U. S. 162 , 53 S. C

1934In the case of Zeitlow v. Smock, 65 Ind. App. 643 , 117 N. E. 665 , it was held that under a similar statute the compensation board may make the character of rule adopted by our board.

1934In the case of Zeitlow v. Smock, 65 Ind. App. 643 , 117 N. E. 665 , it was held that under a similar statute the compensation board may make the character of rule adopted by our board.

1933Also it is agreed that this court, in Murray v. Young, 12 Bush, 337 , applied in a case of this character the rule of the common law.

1929Simmons v. McKay, 5 Bush, 32 , the court said: ‘In the aspect of the case as presented, therefore, it seems that appellants are entitled to an undivided moiety of said 180 acres of land, the possession of which to be postponed until the death of the life tenant; and they had a right to maintain their suit in equity, to establish their claim, and to be placed in a condition to make it available when the time should arrive at which they would be entitled to the use of the estate.’’ ” In Treadway v. Pharis, 90 Ky. 663 , 14 S. W. 909 , 12 Ky. Law Rep. 639 , it was held that, although the remainder

1929Simmons v. McKay, 5 Bush, 32 , the court said: ‘In the aspect of the case as presented, therefore, it seems that appellants are entitled to an undivided moiety of said 180 acres of land, the possession of which to be postponed until the death of the life tenant; and they had a right to maintain their suit in equity, to establish their claim, and to be placed in a condition to make it available when the time should arrive at which they would be entitled to the use of the estate.’’ ” In Treadway v. Pharis, 90 Ky. 663 , 14 S. W. 909 , 12 Ky. Law Rep. 639 , it was held that, although the remainder

1929The law of limitation was applied in the case of Com. v. Clark, 119 Ky. 85 , 83 S. W. 100 , 26 Ky. Law Rep. 993 , upon that very ground.

1929The law of limitation was applied in the case of Com. v. Clark, 119 Ky. 85 , 83 S. W. 100 , 26 Ky. Law Rep. 993 , upon that very ground.

1929In interpreting this generic classification of the character of a claim which may become the consideration for a compromise, aAd on which the suit is forborne, it is pointed out in the Hardin case that “this court seems to have gone somewhat farther than any other by holding in several cases that to be a doubtful claim it must be one about which well-informed lawyers and judges may easily differ, and about which the parties themselves do differ.” Reference is made in that opinion to Western & Southern Life Insurance Company v. Quinn, 130 Ky. 397 , 113 S. W. 456 , in which it was held that the

1929In interpreting this generic classification of the character of a claim which may become the consideration for a compromise, aAd on which the suit is forborne, it is pointed out in the Hardin case that “this court seems to have gone somewhat farther than any other by holding in several cases that to be a doubtful claim it must be one about which well-informed lawyers and judges may easily differ, and about which the parties themselves do differ.” Reference is made in that opinion to Western & Southern Life Insurance Company v. Quinn, 130 Ky. 397 , 113 S. W. 456 , in which it was held that the

1929Such rule was reiterated in Berry v. Berry, 183 Ky. 481 , 209 S. W. 855 , but with the additional declaration that it is immaterial that the parties settled the controversy other than the law would have done or that merit or the right ultimately proves to have been on the other side.

1929Such rule was reiterated in Berry v. Berry, 183 Ky. 481 , 209 S. W. 855 , but with the additional declaration that it is immaterial that the parties settled the controversy other than the law would have done or that merit or the right ultimately proves to have been on the other side.

1925The most recent case decided by this court presenting a like defense was that of West v. Commonwealth, 208 Ky. 182 .

1924The case of Harris v. Commonwealth, 183 Ky. 542 , is in its essential features strikingly similar to this.

1920Meece v. Commonwealth, 78 Ky. 586 ; Doyle v. Commonwealth, 18 Ky. L.

1920However, a motion by any party to a suit, of this character for a rule to require a complete forjnal, prima facie proof of the claims by appellant or suffer a,dismissal of his counterclaim and cross-petition, would not have prevailed, because, as held in Huffman v. Moore’s Admr., 101 Ky. 288 , this being an action under section 428, Civil Code, involved a reference to the master commissioner to pass upon and report every claim and demand, that might be presented, and each of which must be verified and proved, as required by the statute, before being allowed, and if not so proven and verified,

1920In the case of Central Kentucky Traction Company v. Glass’s Admr., 144 Ky. 279 , it was held that a failure to give a similar instruction with reference to the traveler on approaching the crossing was not erroneous, because “the jury had before them all the facts, and they found that the intestate exercised such care as may be reasonably expected of a person of ordinary prudence situated as she was.” If the failure to give the character of instruction contended for would authorize a reversal, even when there was no dispute in the testimony concerning the facts, then in every case it would be e

1920Merritt v. Cravens, 168 Ky. 155 .

1916This question was considered by the Supreme Court of Massachusetts, which has a somewhat similar method of pleading to our own, in the case of Folger v. Washburn, 137 Mass. 60 .

1911Brown v. Commonwealth, 14 Bush, 398 , is the leading Kentucky case on the subject of the competency of opinions by non-experts in criminal prosecutions; and this case, which fully sets forth the grounds upon which the evidence is admitted has been followed in many others, among which we may mention Phelps v. Commonwealth, 17 Ky. L.