Billy Bay EDEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 451 S.W.2d 623

DAVIS, Commissioner. Billy Ray Eden was found guilty as an aider and abettor to others in committing the crimes of burglary and malicious cutting with intent to kill. His punishment was fixed by the jury at imprisonment for eight years. On this appeal he seeks reversal of the judgment on the assertion that he was “effectively deprived of his right to counsel and denied due process of law when his counsel (1) was appointed to defend him on the day of trial, and (2) was forced to trial after less than one hour’s preparation.” The offenses allegedly occurred on August 31, 1967.

The indictment was returned January 16, 1968. Appellant employed counsel who filed various preliminary motions in his behalf. On some date not shown by the record before us, the employed counsel withdrew from the case, and Honorable Henry Hughes of the Lexington Bar was appointed to represent appellant, apparently because of a showing of appellant’s indigence. Several orders of continuance appear of record during the time Attorney Hughes was representing appellant. On April 8, 1969, Mr. Hughes filed his motion for permission to withdraw as attorney of record. On April 22, 1969, the court overruled Mr.

Hughes’ motion to withdraw because it was not supported by affidavit. On the next day Mr. Hughes renewed his motion to withdraw and filed his supporting affidavit in which he asserted that appellant was not indigent and had promised, but refused, to pay a fee to Mr. Hughes. There is no showing that the motion to withdraw as attorney and supporting affidavit were served on appellant. No formal order appears of record permitting Mr. Hughes to withdraw. On May 1, 1969, the date on which the case was scheduled for trial, Mr. Hughes appeared in court and was orally permitted to withdraw as attorney.

Appellant asked for a continuance so that he could obtain counsel, but this motion was denied. The trial judge then appointed Honorable Ernest A. Jasmin of the Lexington Bar to represent appellant. The appointed counsel was a novice at the bar, with only one jury trial in his experience. Mr. Jasmin moved for continuance so that he could prepare for the defense, but that motion was overruled. The newly appointed attorney was granted a few minutes in which to discuss the case with Mr. Hughes, and the case proceeded to trial about one hour after Mr. Jasmin was appointed as counsel for appellant.

The Commonwealth concedes “that the allowance of one hour to prepare for a criminal trial is normally * * * insufficient and inadequate.” It urges, however, three reasons for applying a different rule in this case:

(1) The granting of a continuance lies within the discretion of the trial judge; (2) the chronology of the case reflects that it had been pending a long time with several continuances already granted to appellant, thus supporting the trial judge’s view that the appellant was deliberately attempting to delay trial; and (3) the appointed counsel presented an adequate defense anyway. Many Kentucky cases support the proposition that it is an abuse of discretion for a trial judge to deny counsel in a criminal prosecution a reasonable time to prepare for defense.

Some representative decisions in which abuse of discretion was found are Stumph v. Commonwealth, Ky., 408 S.W.2d 618, 619 (two inexperienced appointed counsel, trial two days after appointment) ; Woods v. Commonwealth, Ky., 305 S.W.2d 935 (trial proceeded same day original counsel withdrew and new counsel employed); Woolsey v. Commonwealth, Ky., 282 S.W.2d 625 (requiring appointed counsel to proceed with trial thirty minutes after the appointment); Raisor v. Commonwealth, Ky., 278 S.W.2d 635 (appointed counsel allowed four hours for preparation) .

The list of citations could be extended, but multitude of authority is not required. In light of the showing that appellant had no notice of the withdrawal of Mr. Hughes until the very day of trial, we are unable to accede to the proposition that appellant deliberately trifled with the court in an unjustifiable scheme to thwart his trial and the orderly administration of justice. Neither are we persuaded that the error in denying a continuance was nonprejudicial in view of the adequate efforts of the appointed counsel.

We have reviewed the trial proceedings and are unable to say that the extemporaneous efforts of appointed counsel demonstrate that no prejudice befell appellant by reason of counsel’s being precipitated into the trial on such short notice. There appears to be a substantial question whether the instructions were proper and whether the verdict was ambiguous. The trial judge, in the course of overruling a motion for new trial, expressed concern as to the possible ambiguity of the verdict.

More expeiienced counsel, or better-prepared counsel, should have raised valid objections to some of the evidence presented for the prosecution and sought more precise instructions and a clearer verdict. The trial judge understandably sought to bring the prosecution to orderly trial and conclusion, but the appellant’s right to be represented by reasonably prepared counsel was impinged. The judgment is reversed for proceedings consistent with the opinion. EDWARD P. HILL, Jr., C. J., and MILLIKEN, NEIKIRK, PALMORE, REED and STEINFELD, JJ., concur. OSBORNE, J., dissents.