195 Ky. 80 | Ky. Ct. App. | 1922
Affirming.
On the night of March 1, 1922, William Brumley, Sr., ninety-eight years of age, living* alone in Clinton county, was tied hands and feet, in bed, in his home and robbed of about fifty dollars in money. As soon as he could unloosen himself after the robbers’ escape, he sounded a large dinner bell as a signal to his sons, who lived nearby, and they came to his assistance. Four or five days later Mr. Brumley made an affidavit before a magistrate, and procured a warrant of arrest to be issued for Willie Fowler and OMa Fowler, brothers, charging them with the commission of the robbery. They were arrested and at the succeeding April term of the Clinton circuit court, indicted for the crime of robbery. A trial resulted in their conviction of the crime charged, Willie’s punishment being fixed at three years’ confinement in the state penitentiary, while Olda was adjudged to serve two years in the same institution. They appeal.
They ask that the judgment against them be reversed for three reasons set forth in their motion and grounds for new trial, filed in the lower court, as follows:
(1) Because the verdict is against the law.
(2) The verdict is palpably against the evidence.
(3) The court, after the jury reported it could not agree upon a verdict, erroneously gave to the jury an admonition which compelled the jury to return a verdict.
These grounds will be considered in the order set forth.
(1) In urging that the verdict was contrary to law appellants’ counsel say in brief that before one can be convicted of a crime charged it must be proven beyond a reasonable doubt, and that nothing short of this will satisfy the law nor sustain a conviction. This is correct. The argument, however, upon this alleged ground for a reversal relates alone to the sufficiency of the evidence to sustain the verdict, and shades into the second alleged ground wherein it is attempted to be maintained that the verdict is palpably against the evidence, and we think it can be as well considered under the second head as the first.
(2) Practically all the evidence introduced for the Commonwealth, except that given 'by the prosecuting witness, was circumstantial. The aged witness, William Brumley, was, like most persons of his age, deficient both in eyesight and hearing. He says he was asleep in bed
(3) The trial was begun on April 20th; the jury was selected and part of the evidence heard. On the morning of the next day the arguments were concluded and the case submitted to the jury about nine o’clock. After deliberating for a short time the jury reported to the court that it could not agree upon a verdict, but was returned to the jury room. Court adjourned for the noon hour and after the jury had eaten dinner it returned to the court room about one o’clock and reported again that it was unable to make a verdict. Thereupon the trial judge gave the jury an admonition, of which complaint is made. The jury had not considered the case more than three hours, which was not an unusual length of time for a jury to deliberate upon a case of such magnitude. A trial judge has a broad discretion in the matter of holding a jury to which a criminal ease has been submitted. The criminal Code, .section 255, provides that if after the jury has been kept together for sufficient length of time, in the discretion of the court, to make a verdict and has not done so, it may be discharged, especially where it satisfactorily appears to the court that there is no probability that the jury can agree. The whole question is within the sound discretion of the trial judge. In receiving the report of a jury that it has been unable to agree upon a verdict, it necessarily becomes the duty of the trial judge, if he thinks proper, to return them to their room for further consideration of the ease, and to give them an admonition concerning their duties, but not necessarily as to the law of the case. In this case the court merely stated to the jury, in substance, that it was its duty to make a verdict if it could do so; that the prosecuting witness was so very old that he might die before the next term of the court, or be unable to attend the court as a witness, and that one of the defendants, Willie Fowler, resided in the
Judgment affirmed.