Appellant, Timothy Graham, was accused by indictment in the Wolfe Circuit Court of the murder of his brother, Reed Graham. Venue was changed first to Rowan County and then to Bath County. A jury trial in the Bath Circuit Court resulted in a conviction for manslaughter. Appellant claims that he was subjected to double jeopardy and that, in any event, the prosecution’s evidence failed to make out a submissible case against him. We affirm.
From the sketchy reсord presented, it appears that when the case was first called for trial and after the jury was selected and sworn, but before the first witness was sworn, the appellant through counsel stated to the court that he had not been arraigned. The Commonwealth thereupon movеd to set aside the swearing of the jury and to continue the case. The trial judge granted the Commonwealth’s motion. The swearing of the jury was set aside, the appellant was properly arraigned, and the case was reset for trial at a later date.
When the case was аgain called for trial, the appellant pleaded double jeopardy. The trial judge denied the plea and the trial procеeded. The jury verdict found appellant guilty and fixed his punishment at confinement for 20 years. From the final judgment entered pursuant to the verdict, this aрpeal is prosecuted.
The Kentucky Penal Code, which was made effective January 1, 1975, provides at KRS 505.030:
“When a prosecution is for a violation of the same statutory provision and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: .
(4) The former prosecution was improperly terminated after the first witness was sworn but before findings were rendered by a trier of fact. Termination under either of the following circumstаnces is not improper;
(a) The defendant expressly consents to the termination or by motion for mistrial or in some other manner waives his right tо object to the termination; or
(b) The trial court, in the exercise of its discretion, finds that the termination is manifestly necessary.” (emphasis supрlied).
The official commentary to our Penal Code states:
“The provision provided in subsection (4) is a codification of prior law, except for a slight change in the point at which jeoрardy attaches. Previously, in a jury case, jeopardy attached when the jury was impaneled and sworn. Baker v. Commonwealth [280 Ky. 165 ],132 S.W.2d 766 (1939). The change that is made by subsectiоn (4) serves only to create the same rule for jury and nonjury trials.”
This definition of the attachment of jeopardy is identical to that containеd in the American Law Institute’s Model Penal Code. See Model Penal Code section 1.09, Comment at 53, Tent. Draft No. 5, (1956). The Institute could find no compelling reason to perpetuate the distinction between jury and bench trials as to the point at which jeopardy should be deemed to аttach.
Appellant appears to concede the applicability of KRS 505.030(4), but urges that the change effected by the statute viоlates a mandate of the Constitution of the United States. He cites Serfass v. United States,
In Bretz v. Crist,
1. Is the rule heretofore applied in the federal courts — that jeopardy attached in jury trials when the jury is sworn — constitutionally mandated?
2. Should this Court hold that the Constitution does not require jeopardy to attach in any trial — state or federal, jury or nonjury — until the first witness is sworn?
Although we have deepest respect for the outstanding scholar and jurist who authored the Ninth Circuit’s extensive opinion in Crist, we are unable to agree with the conclusions reached by that court. Without retracking the paths explored by the Crist opinion, we think it suffices to say that we perсeive no real or substantial danger to the validity of the federal double jeopardy guarantee by the removal of a historical anachronism.
Jeopardy attaches when a defendant is placed on trial before the trier of the facts. In defining the point at which thе defendant is “placed on trial” what constitutional significance should the number of triers of fact bear to the determination? The Crist opinion relegates this consideration to a footnote where the court remarks that a major purpose of the double jeopardy clause is the protection of the defendant’s right to have his trial completed by a particular tribunal. Then the footnote states: “When one sees that the two attachment of jeopardy rules are necessary if this ‘valid right’ is to be protected, the reason for the distinction seems plain.” Bretz v. Crist, supra, at ft. n. 21, pp. 1345, 1346. We fail to see that which the opinion characterizes as “plain.”
If a defendant is tried by a single fact finder, he is “in jeopardy” as quickly in the trial process as if he were to be tried by six fact finders, nine fact finders or twelve fact finders.
For a state to legislatively fix the same point in the trial process as the time of the attachment of jeopardy in both jury and nonjury cases surely hаs less constitutional impact or significance than for a state to provide for criminal felony trials by less than the apostolic twelve or to permit conviction of crime by a verdict less than unanimous. Yet both of these state-enacted provisions for the mechaniсal operation of criminal trials have successfully passed federal constitutional review by the Supreme Court.
We hold KRS 505.030(4) constitutionаl under our federal and our state constitutions. If the U.S. Supreme Court holds otherwise as a matter of federal constitutional lav/ we will, of cоurse, respectfully conform to its decision, but we have expressed our views so the parties would not be left in a state of uncertainty сoncerning our present conclusions.
Appellant’s claim that the evidence was insufficient to make a submissi-ble ease was not preserved for appellate review. No motion for a directed verdict of acquittal was made at the conclusion of all the evidence. See Kimbrough v. Commonwealth, Ky.,
The judgment is affirmed.