291 S.W. 749 | Ky. Ct. App. | 1927
Affirming.
On a former appeal of this case a judgment of conviction for manslaughter was reversed on account of erroneous instructions. Lee v. Com.,
On this appeal it is urged, first, that the trial was premature. It does not clearly appear from the record of the former appeal that the defendant was on bail while it was pending. It does appear from this record that the mandate of reversal was issued November 11, 1925; that without previous notice it was presented by the commonwealth attorney and filed in open court on the first day of the succeeding term of the Franklin circuit court, January 5, 1926; that on motion of the commonwealth's attorney and over the objection and exception of defendant the case was docketed and assigned for trial on the 25th day or that month, and then tried. It is now insisted that in the absence of previous notice the court was without jurisdiction to try the case at the same term at which the mandate was filed.
There is no provision of the Criminal Code permitting such mandates to be filed during vacation nor any provision regulating the method of procedure upon reversal, and our attention has not been called to any case in this court exactly in point. In Powers v. Com.,
The second contention is that the court erred in overruling the motion of defendant to set aside the swearing of the jury and to discharge the panel. The jurors were summoned from Shelby county and the the jury was impaneled and sworn and the case stated on the evening of January 25th. On the following morning the defendant entered the motion above indicated, based on the affidavits of three young men who claimed to have overheard a conversation between Frank Graves, a resident of Frankfort who had served as a juror in Lee's first trial, and a Mr. Webber who had been summoned as a prospective juror, which occurred in the courthouse while the jury was being selected. That Graves said, "I would not like to set in Lee's case because I have already passed my opinion," and that Webber said, "He would *363 like to set on it, that he had made up his mind in the case and that he thought the damn son-of-a-bitch ought to be hung;" that shortly afterwards Webber was called and selected as a juror, stating on the voir dire that he had not formed or expressed an opinion.
In considering this motion the court retired to chambers and heard the evidence of the two affiants, who reiterated their statements in the affidavits and also the evidence of Graves, who denied the conversation in toto, and of the sheriff of the county, who testified as to the bad reputation of affiants. Thereupon the motion was overruled. On the motion for a new trial the same question was raised and the commonwealth filed in affidavit of Webber, who also denied the conversation intoto. The charge made was a serious one. If true Webber was totally unfit for jury service and it would be a travesty upon justice to permit him to serve, as such remarks not only showed extreme bias and prejudice but implied that his answers in thevoir dire to the effect that he had not formed or expressed an opinion were false and misled appellant. But as his character is not otherwise attacked, and in view of the positive denials made by him and Graves and the impeachment of the parties making the affidavits, we entertain no doubt that the lower court correctly concluded that the charges were untrue and properly overruled the motion.
(3) There were four defendants in the indictment, which contained the usual allegations as to aiding and abetting. It is strongly urged, however, that the evidence did not authorize an instruction upon this issue, and that the court erred in giving such instruction; also, that if it was proper to submit this issue the instruction should have been qualified to meet the peculiar facts and circumstances of this case. In this respect it appears that the same instruction was given on the first trial and that it was not criticised by this court in its former opinion, the case being reversed on the sole ground of error in the instruction upon self-defense. It was there argued by the commonwealth that defendant was not entitled to a self-defense instruction because he denied participating in the fight in which deceased was killed. In reference to that the court said:
"That contention cannot be sustained because the evidence discloses that appellant and his three co-defendants were engaged on one side in a general *364 encounter, while deceased and some three or four companions were engaged on the other side. According to defendants and his co-defendants deceased and his friends precipitated the fight and that he and his friends did all that they did while engaging in the encounter in defense of themselves and of each other. Appellant admitted engaging in the fight, as did all of his co-defendants. Appellant and each of his co-defendants denied inflicting the wound that resulted in the death of deceased. Under those facts it clearly would have been error not to submit appellant's defense of self-defense, and the giving of the instruction, worded as it was, clearly was prejudicial to his substantial rights."
Thus clearly indicating that the question of aiders and abettors was considered. The opinion disposed of two others questions which were not likely to arise on another appeal, and further said: "Our careful consideration of the other alleged errors urged by appellant has convinced us that they do not possess sufficient merit to require a discussion and determination of the questions presented." It must, therefore, be presumed that the instruction on aiding and abetting was considered and approved by the court, at any rate that opinion is the law of the case upon a second appeal, not only as to all questions decided but as to all questions that were raised or could have been raised in the record on that appeal. Muth v. Nunnelly's Admr.,
Lastly it is urged that the commonwealth's attorney was guilty of misconduct in his closing argument to the jury. On cross-examination of defendant the commonwealth laid the ground for contradiction, and later in rebuttal *365 offered certain witnesses for this purpose. These witnesses were under the rule but had remained in the court room during the trial, and the court sustained appellant's objection to their testifying. After referring to these facts the attorney said: "I am not criticising the ruling of the court, but I believe it is competent for me to comment on what occurs in your actual presence and you have a right to draw a reasonable conclusion from what occurs in your presence, and you have a right to believe from this action that the defendant is unwilling for all the facts to be presented to the jury." Appellant objected and moved the court to admonish the jury, and the court said to the jury: "He cannot avail himself of the language of the witnesses, but he may comment on your objection to the testimony." The majority of the court are of the opinion that this language should not have been used, but do not think it was prejudicial under all the circumstances of the case.
Wherefore, perceiving no error, the judgment is affirmed.