Crockett v. Commonwealth

100 Ky. 389 | Ky. Ct. App. | 1897

JUDGE DuRELLE

demyeketi tiie opinion oe tiie court :

In this case the facts; have been sufficiently stated in the case of James Crockett against the Commonwealth, this day decided, and the questions of law raised in argument are the same as in that case with one exception.

After being instructed and hearing the argument of counsel the jury retired to their room to consider, and, after some time, returned into court and offered and read the following verdict; “We, the jury find the defendant, John Crockett, guilty as charged in the indictment, and fix his punishment at confinement in the penitentiary for the period of ninety-nine years.

“P. H. BRIDGEWATER,

“One of the Jury.”

Thereupon the court said to the jury that he would not receive that as a verdict; that it was not in accordance with the instructions, and called their attention to the instructions, and directed them to return to tfieir- room and make their verdict in accordance with, the instructions.

Proper objections were made and exceptions taken at the time. A motion was made to discharge the jury and another motion to discharge the appellant from custody. Appellant’s objections and motions were overruled by the court, and the jury then retired to their room, and, after some time, returned into the court and delivered the following verdict: “We, the jury, find the defendant, John Crockett, guilty as charged in the indictment, and fix his punishment at confinement in the penitentiary for life.

“P. H. BRIDGEWATER,

“Foreman.”

The objection to the course of the trial court as to this verdict is based upon the case of Roberts v. Commonwealth, 90 Ky., 655. In that case a verdict had been returned, correct in form and substance, imposing the loAvest punishment permitted in a case of voluntary manslaughter, as given in the instruction. The instruction, however, wms erroneous, in that the court, through inadvertence, instructed the jury that if the accused was guilty of manslaughter his punishment wras confinement in the State prison for not less than ten nor more than twenty-one years. The jury under this instruction fixed the punishment at ten years’ confinement. The verdict had been announced and the jury was being polled, when it was suggested that the instruction was erroneous because it fixed the minimum at ten instead of two years. The court then gave another and correct instruction, and required the jury to return to the jurv-room and further consider the case.

This court held in that case that while the jury in their second verdict lessened the punishment imposed from ten to four years,, yet they might have made the punishment, when considering the case for the second time, greater than was originally found, and that the court, finding the instruction first given erroneous, should have permitted the verdict entered and then set it aside, granting the appellant a new trial. That, however, is not the case at bar. In this case the instruction given was correct, and it was no more erroneous to require the jury to make their verdict conform to the instruction given than it would have been to send them back to the jury-room for further consideration if they had announced that they were unable to agree. Moreover, the verdict rendered after the second retirement of the jury was the same in substance as that rendered when they retired the first time.

Mr. Bishop in his new Criminal Procedure, volume 1, section 1004, says: “A verdict inadequate in form and substance should not be received, but the jury should be required to perfect it, either iu the presence of the court or by returning for the purpose to their room, due consultation having been had with the judge, and, if necessary, further evidence delivered.”

And in the American and English Encyclopedia, volume 28, page 365, it is said: “Where defects of substance or of form appear in the verdict upon its rendition the jury may be allowed to alter or correct it at their own request, or the court may require the proper amendments to be made.” (See also Abbot’s Trial Brief, page 512, and authorities there cited.)

The judgment in this case is affirmed.