26 S.W.2d 23 | Ky. Ct. App. | 1930
Affirming.
Upon the fourth trial of the appellant, Charles W. Neal, he has been found guilty for the third time of man-slaughter, and he appeals from the judgment sentencing him to serve 17 years in the penitentiary.
On the first trial the jury disagreed. A verdict of guilty on the second trial was set aside by the lower court upon a supplemental motion for a new trial. See Commonwealth v. Neal,
The case coming on for trial again at the September term, 1929, of the Boyd circuit court, the court entered an order directing the sheriff of Carter county to summon fifty persons for jury service in the case. The defendant at the time objected and excepted to the order. When the veniremen appeared, he moved to set aside and discharge the entire panel; but the motion was overruled, and he undertook to except to that decision of the court.
The section of the Criminal Code of Practice under which the court acted is 194, which is here quoted for convenient reference: "If the judge of the court be satisfied, after having made a fair effort, in good faith, for *535 that purpose, that, from any cause, it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified jurors from some adjoining county in which the judge shall believe there is the greatest probability of obtaining impartial jurors, and from those so summoned the jury may be formed."
The court acted well within his discretion in ordering a jury panel from an adjoining county. Brafford v. Commonwealth, 16 S.W. 710, 13 Ky. Law Rep. 154; Bowman v. Commonwealth,
Section 196 gives to the sheriff local to the court extraterritorial authority in such cases. No authority is granted the sheriff of the adjoining county by reason of his office to summon them, but under section 193 the court may designate him or any other person to summon petit jurors. When so designated, he must be duly sworn in open court to discharge his duty faithfully and impartially. In this instance the sheriff of Carter county was not so qualified, and the result was that the venire from that county appeared in Boyd county without having been summoned according to law. The accused had the right to have the jury before which he must come to trial summoned by an officer of the court trying him and by no other. While there is nothing in the record to indicate that these men were not in every respect qualified as jurors and the verdict does not reflect any actual prejudice or harm — three other juries also having found the defendant guilty and at least one of them inflicted a heavier penalty — nevertheless these procedural laws were intended to be and should be given effect, and there was a violation of the appellant's statutory rights.
If this were a civil case, the error could be considered by this court (Louisville N. R. Co. v. King,
Before 1854 the right of appeal in felony cases in Kentucky was denied. From time to time the right has been enlarged, until at present all decisions of the trial judge are subject to exception and review except upon challenges to the jury panel or to individual veniremen for cause or upon motions to set aside an indictment. The most recent extension of this right was made by the General Assembly in 1910 (Acts 1910, c. 92), when it authorized an appeal from an order overruling a motion for a new trial. Counsel for appellant express their familiarity with this inflexible law, but argue the error in overruling the motion for a new trial should be considered. But the removal of the restriction did not enlarge the power of this court to consider a ruling of the lower court respecting the impaneling of the jury. To give the statute that interpretation would be to do indirectly what the court is prohibited from doing directly. Keller v. Commonwealth,
In Curtis v. Commonwealth,
The only other ground assigned as a reason for reversing the judgment is that in answer to a question on cross-examination, the coroner voluntarily stated: "The inquest showed that the man that fired the shot was on the side of Millard Walker and higher; now that is what the inquest showed." The court, on its own motion, instructed the jury not to regard that statement. The attorney for the prosecution, however, immediately asked: "When you say inquest you mean the examining trial?" The witness answered: "I mean the post-mortem. Q. Examination? A. Yes, post-mortem examination." The objection of the defendant was overruled. It is considered error to permit a witness to express an opinion, based on the range of the bullet, as to the relative positions of the parties. Ge Burk v. Commonwealth,
The judgment must be, and is, affirmed. *538