158 Ky. 465
Court of Appeals of Kentucky.
April 21, 1914.
ACTION: Appeal dismissed.

Appeal from Circuit Court, Knox County.
Arthur Fore was found guilty of voluntary manslaughter.
From an order granting a new trial, the Commonwealth appeals.

The appellee, under an indictment for murder, was found guilty of voluntary manslaughter. After this he filed a motion and grounds for a new trial, and the motion was sustained and a new trial granted, "to which ruling of the court, as well as other decisions occurring on the trial, the commonwealth at the time excepted, and now prays an appeal to the Court of Appeals of Kentucky for a review of said decisions and rulings of the court, and for a certification of the law applicable thereto." Pursuant to this order, a partial transcript of the record has been brought to this court.

When there has been a mistrial, or when a new trial has been granted to the defendant, the commonwealth may bring to this court by appeal a full and correct transcript of the orders, proceedings, evidence, and instructions, if the officers charged with the duty of representing the commonwealth believe errors prejudicial to the substantial rights of the commonwealth were committed by the trial court during the trial that resulted in a mistrial or in the granting of a new trial. This practice is authorized by section 335 of the Criminal Code, so that the law of the case may be settled by this court for the benefit of the trial court on another trial, and to the end that there may be a uniform administration of the criminal laws of the state.

As the purpose of allowing an appeal to the commonwealth pending the final trial and disposition of the case in the lower court is to secure a review of rulings of the trial court believed to be prejudicial to the commonwealth, it is manifestly the duty of the attorneys representing the commonwealth to point out in briefs submitted to this court the errors complained of, so that this court may know what errors of law committed by the trial court it is expected to review. It is apparent that, if the record is filed in this court without any brief for the commonwealth indicating the errors complained of, this court cannot, with any degree of satisfaction or certainty, undertake to write an opinion that would be of service to the trial court on a retrial of the case, or that would aid in securing a uniform or correct administration of the criminal law.

Looking now to the record before us, we find that it does not contain the indictment, or the motion and grounds for a new trial, or any order or statement showing the reasons that influenced the trial court in granting a new trial. There is no bill of exceptions, but appended to the record is an agreement, signed by the commonwealth's attorney and the attorney for the appellee, showing that the instructions attached to the stipulation were the ones given by the trial court, and this contains the only reference to the instructions, none of which appear to have been objected to. With the record in this condition, and in the absence of any advice or assistance from the commonwealth's attorney, the Attorney General has not and could not well prepare a brief for the commonwealth directing attention to the errors, if any, committed by the trial court. We think that when the commonwealth's attorney believes that the trial court has committed error to the prejudice of the commonwealth in a case like this, and desires to have these alleged errors reviewed, he should see to it that a complete record is brought up, and should either file a brief in this court, directing the attention of the court to the errors complained of, or advise with the Attorney General in respect to them, so that the Attorney General may be prepared to file a brief that will be of some assistance to the court.

For the reasons indicated, the appeal is dismissed.

Ky.App. 1914.
165 S.W. 676, 158 Ky. 465


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