109 S.W.2d 45 | Ky. Ct. App. | 1937
Reversing.
At about 7 p. m. on the 10th of January, 1937, John Houston, a man about 50 years of age, in a jealous rage stabbed to death Lucy Williams, aged about 42 years, in her room in the rear of a hotel in Middlesboro, Ky. He was charged by indictment with murder and was further charged in that indictment with having been convicted of malicious cutting and wounding in the Hopkins circuit court on the 2d day of October, 1909; with having been convicted of murder on the 2d day of April, 1913, in the Vanderburgh circuit court in the state of Indiana; and with having been convicted upon a charge of malicious cutting and wounding by the Bell circuit court (Ky.) on the 22d day of its May term, 1934.
To the indictment against him the defendant entered a plea of guilty and, upon his trial under this charge and plea, his punishment was fixed by the jury at death. His motion for a new trial having been overruled, he appeals and relies for reversal upon three alleged errors of the court. *126
Over the objections of the accused, the commonwealth was allowed to prove the averred former convictions by introducing the records which in view of his plea of guilty was, to say the most of it, useless.
"Gentlemen of the Jury: The defendant, John Houston, has entered a plea of guilty to the charge of the indictment in this case. You will therefore find the defendant, John Houston, guilty of wilful murder as charged in the indictment and fix his punishment at death or at confinement in the State Penitentiary for life in your discretion according to the proof. James M. Gilbert, Judge."
"The jury returned to the court room and asked the following question: 'Under this indictment under the Habitual Criminal Act, if we give this man life, would that prevent him being pardoned under this Habitual Criminal Act? Judge: 'NO, it would *127 not prevent that.' Counsel for defendant excepts to the question asked and the ruling of the court on the question. Judge: 'I didn't rule on it, I just answered it.' Defendant excepts to the answer. The jury retired and soon came in and their names were called by the Clerk of the court, each one answering to their name. Judge, 'Have you reached a verdict, gentlemen?' Foreman: 'Yes we, the jury, do agree and fix the punishment at death.' Judge: 'So say all of you, gentlemen?' Answer: 'Yes.' Judge: 'Let me suggest that you correct the verdict to this extent: "We, the jury, do agree and find the defendant guilty, and fix his punishment at death." ' The foreman of the jury, Mr. Hill, interlined the above suggestion of the Judge in the verdict, and read it as corrected. Judge: 'Is that the verdict of all of you; if not, let me know.' No one answered."
In our Criminal Code of Practice there is this provision:
"Sec. 249. After the jury retires for deliberation, if there be a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties."
The question asked by the jury related solely to what a co-ordinate branch of the government could do, which was a point of law that was not involved in this case and not one of this jury's concern, and instead of answering the question as he did the court should have said something like this:
"Section 225 of the Criminal Code of Practice requires me to give you in writing all the law of the case and. I have done so in the instruction I have given you. That is all I am allowed to tell you."
In the case of Postell v. Com.,
That was not error, but for the error of the Judge in answering as he did the question asked by the jury, this judgment is reversed.
Whole court sitting.