113 Ky. 795 | Ky. Ct. App. | 1902
Opinion of the court by
Reversing.
Appellant was tried for the murder of Robert L. Reid, found guilty, and his punishment fixed at death. A motion for a new trial was made on the grounds — First, that the finding of the jury was contrary to the law and the evidence; and, second, that the jury was illegally constituted, in that there were members thereof who had publicly expressed their conviction that the defendant ought to be hanged. _ No affidavits were filed in support of the second ground for new trial, the motion was overruled, and an exception entered to the order overruling it. This exception, which is claimed to have been inserted by the clerk from force of habit, is the only exception we find in the record.
The evidence shows that a negro picnic was given on Utopia Island, near Elizabethtown; that a few days before the promotors applied to the sheriff to have Reid appointed a deputy, to beep order at the picnic, and that he had Reid
Counsel for appellant contends that there was manifest error fo his prejudice in the admission of testimony, and in the instructions given to the jury: But we must first determine whether, as there were no exceptions either to the admission of testimony or to the instructions, we can (consider the alleged errors, with a view7 to reversal of the judgment. Counsel seems to concede that the great weight of authority is against the power of this court to consider any error in the conduct of the case which wras not objected and excepted to at the. time. In Branson v. Com., 92 Ky., 333 (13 R., 614) 17 S. W., 1019, this rule was announced in the opinion by Judge I-Tolt,.and a distinction made between steps proposed by the adverse party and those taken by the court sua sponte; it being held that in the former case an objection should be entered, “in order to specially call ihe- court’s attention to it, and, if its ruling be adverse to the objecting party, then he must except. This is the proper practice. It is the express rule of the present Civil Code, and a proper conduct of criminal cases requires, in our opinion, the same* practice. The provisions of the Criminal Code ad
The present counsel for appellant seems to admit the propriety of the practice here outlined, but insists that a different rule has been applied by this court in the case of McClure v. Com., 81 Ky., 448 (5 R., 468), in which the tender age of the defendant, a boy under 14 years, was held to impose upon the trial court the duty, of its own motion, without objection or exception from any one, to protect the accused from all illegal proceedings, and argues therefrom that the same rule should be applied in the case of an ignorant negro, when, through the incompetency of his counsel, proper steps were not taken for his protection. He argues further that, in any event, the rule does not apply to exceptions to the instructions of the court; that it is well settled that, in a criminal case, it is the duty of the court to give the whole law applicable to the case. Williams v. Com., 80 Ky., 313 (7 Ky. Law Rep., 744); Cook v. Com., 10 R., 222 (8 S. W., 872); Louisville & N. R. R. Co. v Com., 13 Ky. Law Rep., 925; Trimble v. Com., 78 Ky., 176; Heil
But the question remains whether there is such a substantial difference between error in giving or failing to give the law of the case in instructions, and error in what may be called the practice of the case, in admitting or rejecting testimony, and the like, as would justify us in taking cognizance of an error in the one case, though not excepted to, when we would refuse it in the other case. In asmuch as the custom of taking a general exception to instructions in a criminal case is so general as to be almost axiomatic, the cases in which this question-could have been made are few in number, and the question, so far as we are aware, has never been raised. That there is a difference in the reason for requiring an exception under our present practice, there can be no manner of doubt. Whether thcrule be regarded as fairly to be deduced from the provisions of the statutes when read together, or as a rule of judicial construction, not literally required by section 340 as amended, it is a rule of policy, and based upon the necessities of jurisprudence. It is to be presumed that the trial court will correct an error to which its attention is called. It is to be presumed that the court will not rule erroneously if proper objection is made. It is to be presumed, also, that the defendant acquiesces in that to which he does not object, and is satisfied with the rulings to which he does not except.
The instruction as to the right of deceased to arrest appellant seems to us to be, also, erroneous. There was no competent evidence of the appointment of Reid as deputy sheriff. He could not be appointed except with the approval of the count}' court. Kentucky Statutes, sections -1141, 4560. As the sheriff can not appoint a deputy without the approval of the county court, such approval must be shown, to make the appointment valid. It was therefore error to give an instruction assuming that Reid was a deputy sheriff, and had the right to arrest for disorderly conduct committed in his presence. The form of the instruction is also objectionable.
For, the reason given, the judgment is reversed, and the cause remanded, with directions to award appellant a new trial, and for further proceedings consistent herewith.