215 S.W.2d 838 | Ky. Ct. App. | 1948
Reversing.
Ed Johnson was sentenced to two years in prison for carrying concealed a deadly weapon. Reversal of the judgment is urged upon the following grounds:
"(1) After the jury had been accepted and sworn, the court, without consulting appellant or securing his consent, dismissed T.Y. Harmon, a member of the jury, and impaneled W.T. Ellis in his place. After Ellis was impaneled, the jury was again sworn and the case proceeded to trial over the objection of the appellant.
"(2) The verdict of the jury was received and read by the court without a poll of the jury, over appellant's objection.
"(3) The trial court erred in overruling appellant's motion for a directed verdict."
The sufficiency of the evidence concerning Johnson's guilt is questioned in the third ground. That Johnson was carrying a .38 pistol is not denied. He and his witnesses testified that he was not wearing a coat, but rather a short, close-fitting sweater, and that the handle of the pistol could be seen protruding from the right pocket of his trousers. Reference is made to testimony of the Commonwealth's witnesses as to how Johnson *711 was dressed and to the position of the parties and also the pocket from which he took the gun. Granting all this, we think there was sufficient substantial evidence of Johnson's guilt to warrant the submission of the case to the jury.
In regard to the first ground the bill of exceptions shows:
"After the Commonwealth's Attorney had read the indictment to the jury and had made a partial statement of the case, T.Y. Harmon, one of the jurors accepted and sworn to try this case, stated that he had been a member of the jury on the trial of this case at a previous term of this court. Thereupon, the defendant moved the court to set aside the swearng of the jury and continue the case, and the court being advised, sustained said motion as to the setting aside the swearing of the jury, but overruled the motion for continuing of the case, to which ruling of the court, the defendant objected and excepted.
"Thereupon, the court directed another juror to be impaneled, and W.T. Ellis was called as such juror, and the Commonwealth accepted W.T. Ellis as a member of the jury, making twelve jurors in all.
"The defendant objected and excepted to this procedure and accepted the jury under protest. Thereupon, the whole jury was again sworn by the court."
It is said that the foregoing quotation from the bill of exceptions does not correctly set forth the facts relating to the juror, Harmon. Obviously, however, we can consider only the statements in the bill of exceptions, since they were prepared by counsel for the appellant and submitted to and approved by the trial judge. The point is made that Johnson was put in jeopardy when the jury was first impaneled, accepted by both parties and sworn to try the case. The cases of O'Brian v. Commonwealth, 9 Bush 333,
Section 267 of the Criminal Code of Practice, provides:
"Upon a verdict being rendered, the jury may be polled, at the instance of either party, which consists of the clerk or judge asking each juror if it is his verdict, and if one answer in the negative the verdict can not be received."
The bill of exceptions shows that Johnson objected to the receiving of the verdict without the call (poll) of the jury. The court overruled this objection. This was error. In the case of Boreing v. Beard,
"The most substantial right of the accused in a felony case, incident to his constitutional privilege of being present when the verdict is returned, is the right to poll the jury and to require each member of the jury when face to face with the accused to state whether or not the verdict is his verdict. * * *"
This right may be waived, but it was not done in the case before us. In the case of Temple v. Commonwealth, 14 Bush 769,
"* * * He (accused) has a right not only to see and know that the whole jury is present assenting to the verdict, but by polling to demand face to face of each juror whether the verdict is his verdict, and to object to it unless *713 each member of the jury shall answer for himself that the verdict is his."
In the recent case of Cannon v. Commonwealth,
For the reasons given the judgment is reversed, with directions to set it aside and for proceedings consistent with this opinion.