181 S.W.2d 438 | Ky. Ct. App. | 1944
Affirming.
On Saturday afternoon, August 8, 1942, a church meeting was held in the vicinity of appellant's home in Knox County. The evidence for the Commonwealth shows that while the meeting was in progress, appellant, his cousin, Howard Messer, T.J. Carnes, a young son of the prosecuting witness, Henry Carnes, and others, sat on a stone wall in front of a store near the church. Appellant twisted the foot of the little Carnes boy, who told him that unless he stopped, he would tell his father. Leonard said he didn't "give a damn, we will whip him, won't we Wade Smith." From the questions asked by counsel for appellant, it appears that the Messers were under the impression that the elder Carnes had poisoned Howard Messer's dog. After the meeting in the church adjourned, appellant and his companions, together with several other people, walked toward their homes in the same direction above the church. Mr. Carnes and his wife were riding on different mounts in the same direction. Leonard, Howard, and George Messer continuously looked at the Carneses, and whispered to each other. After they had passed the Carneses they stopped and appeared, as Mrs. Carnes testified, "to be caucusing." Mr. Carnes stopped at the house of a neighbor to borrow a knife for the purpose of operating on a hog. While he was gone, Leonard Messer grabbed the bridle of Mrs. Carnes's horse, and began cursing and abusing her. When Henry Carnes returned, Howard Messer grabbed Mrs. Carnes and said to Leonard, "I will take care of Martha (Mrs. Carnes.) Drag off Henry (Mr. Carnes) and I will help you." Arming themselves with sticks and rocks, they attempted to administer a whipping to the Carneses and their daughters. Mr. Carnes broke away after receiving several blows at the hands of the defendants, making his escape to the home of Sawyer Messer. The defendants pursued him, and, being unable to *774 break down the door of the house, obtained a ladder by means of which Leonard Messer gained admission to the house. About that time assistance came to the Carneses and the disturbance was quelled. Mr. Carnes received several broken ribs in the affray.
The Messers were indicted for committing the crime prohibited by KRS
The complaint in respect to the indictment is that it is not in proper form, and that it does not follow the words of the statute; but counsel fails to point out any error in form, or to disclose the omitted words. We have read the indictment carefully, and find that it follows the statute as closely as possible without quoting it verbatim. Certainly it substantially charges all of the elements constituting the crime for the commission of which appellant was convicted. Nor do we think that the complaint is well founded that the form of the indictment is not sufficient, although we find it rather difficult to discuss this point, since the alleged insufficiency in form is not pointed out in the brief.
Before the jury was accepted, they were asked if any member of the panel had heard testimony in the case upon its previous trial; by their silence they indicated they had not. At the conclusion of the opening statement by the Commonwealth's Attorney, one of the jurors disclosed the fact that he had discovered during the opening statement that he had heard some of the testimony given on a former trial; whereupon defendant moved the court to set aside the swearing of the jury and continue the case. Obviously, the defendant was not entitled to have the case continued for this reason, although we perceive that the motion was sufficiently broad to include the relief to which he might have been *775
entitled had he made a specific motion to that effect, viz., the swearing of the jury set aside, and the right to challenge the juror peremptorily. The mere fact that a juror has heard evidence in a previous trial of a case is not sufficient cause for a challenge, where, as here, the record discloses the juror answered on voir dire examination that he had heard only a small amount of the evidence, from what he had heard he had not formed or expressed an opinion as to the guilt or innocence of the accused, and that the evidence he heard had not influenced or prejudiced him in any way. Waggoner v. Commonwealth,
The contention that there was not sufficient evidence to submit the case to the jury is without merit. This court has consistently said that it is almost impossible to prove conspiracy by proof of the secret plans and conversations of the conspirator; but that the jury may infer from the facts and circumstances shown in the evidence that a conspiracy has been entered into. One of the late decisions to this effect is Ball v. Commonwealth,
The complaint in respect to the instructions cannot be entertained by this court, because the exceptions thereto were not preserved in the motion for a new trial. Manning v. Commonwealth,
We perceive no error prejudicial to appellant's substantial rights.
The judgment is affirmed.