Roberts v. Commonwealth, 94 Ky. 499

Roberts v. Commonwealth

94 Ky. 499 | Ky. Ct. App. | 1893

JUDGE HAZELRIGG

delivered the opinion of the court.

On. a former trial of this case, a demnrrer to the indictment was filed and overruled. On an appeal to this court, the ruling of the lower court in this respect was approved, and the sufficiency of the indictment will not again be considered. The appellant, for the second time convicted of murder and sentenced to confinement in the penitentiary for life, complains on this appeal:

*503First. That he was not "granted a continuance. No absent witness could throw any light on the killing with which he was charged, but would testify, it is said in the affidavit, to the unsoundness of defendant’s mind. There were other witnesses present who did so testify, and the affidavit for the continuance, so far as competent, was read to the jury as evidence.

Secondly. It is urged that the court erred in overruling his challenge to the panel of the jury summoned for (hat term of court. No record evidence of how the panel was obtained was -offered, but the affidavit of the defendant contained the statement that it was not selected by jury commissioners but by the sheriff and his deputies, all of whom are alleged to be taking an active part in the prosecution of the defendant. This was not the proper way to show irregularity in the formation of the jury or in the mode of summoning it. There was a record, easy of access, disclosing the facts. It does not appear when the panel was summoned; it is to be presumed that the sheriff performed this service under the order of court as provided by section 11 of article 4, chapter 62 of the General Statutes. Moreover, it is distinctly provided by section 281, Criminal Code, and oftentimes so announced by this court, that- decisions of the court upon challenges to the panel and for cause shall not be subject to exception.

In this connection we may notice the motion of the defendant to have the jury summoned from an adjoining county. His affidavit discloses that the prose-tors are people of influence, and are using money to *504secure Ms conviction. Section 194, Criminal Code, provides: “If the judge of the court be satisfied, after having made a fair effort, in good faith, for that pur pose, 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 manner of satisfying himself of this impracticability is by making a fair effort to obtain the jury in the county wherein the case is pending, and certainly the court is not to ignore the plain provisions of the Code, and be controlled and guided by the unsupported affidavit of the defendant.

After the regular panel was exhausted, the court, under section 193, Criminal Code, designated two other persons to summon petit jurors, who were duly sworn. This was objected to by the defendant, but we perceive no error in thus following the provision of the law cited.

An attorney, other than the regular attorney for the Commonwealth, stated to the jury the nature of the charge against the defendant. We see no error in this, nor in the fact that one of the witnesses for the Commonwealth is shown to have heard the statement. The court no doubt would promptly have required his retirement had his attention been called to the fact of his presence.

We have examined the rulings of the court care*505fully in admitting and rejecting testimony, and find no error prejudicial to the substantial rights of the defendant. The nearest approach to it perhaps was in not allowing the defendant to prove by Eansom Eoberts that the friends of the deceased had procured an indictment for perjury against the witness in order to discredit his testimony. The Commonwealth had been allowed, but without objection by defendant, to ask the witness if he was not under indictment for perjury. He answered affirmatively. Whereupon the defendant asked him who procured the indictment, an objection to which was sustained, and -it was then avowed that the witness would prove that Shearman Cope and other relatives and friends of the deceased, who were prosecuting the defendant, had procured the indictment against the witness. This evidence was competent as tending to explain away the discrediting circumstance of the indictment. But it appeared that the indictment was found for perjury in the very case then on trial, aud growing out of the testimony of the witness on a former trial. The testimony, therefore, involving the alleged perjury, and upon which the indictment was found, was all before the jury in the case on trial. The statements of the witnesses for the Commonwealth establishing the alleged false swearing on the part of the witness, together with the testimony of the witness alleged to have sworn falsely, were all before the jury. The testimony, therefore, pro and. con on the subject-matter of the alleged perjury, was heard by the jury. They understood all the circumstances, and were in an attitude to judge of the effect and weight to be *506given the testimony of the witness in defendant’s behalf, as affected, if at all, by the pendency of the indictment against him.

John Frazier was allowed to prove that Obe Roberts, a witness for the defendant and a relative, had said to him after the killing, and not in the presence of the defendant, that if he (witness) wonld swear for the defendant, that he (Roberts) wonld help him out of a certain indictiiient against him. This was irrelevant and incompetent testimony, but not prejudicial. It abundantly appeared from the proof that Frazier was not present at the killing and could have known, therefore, nothing touching which he could have sworn for the defendant material to his defense. An intelligent jury would not hold the defendant responsible for the supposed imprudences of his friends, especially when they appear incredible and absurd on their face.

The facts testified to for the defendant by Ransom Roberts, and allowed to be contradicted by Centers and others for the Commonwealth, were not collateral but substantive facts. They involved the manner of the killing and the attitude of the parties at the time of the homicide. It was not error to permit the contradictory testimony, nor was it improper to allow Robert Frazier to testify to the statement of Ransom Roberts respecting his intentions on the day of the killing. These intentions involved in no way the action or conduct of the accused, were not made with reference to him, and were competent only so far as this might affect the credibility of the witness. We think that the lower court allowed defend*507ant’s counsel every opportunity that was reasonable to present their testimony, and Hopson’s proposed testimony came too late.

Whether the jury should be sent to view the ground was a matter within the sound discretion of the court. There appeared to be no complicatiou in the testimony regarding the topography of the country where the killing occurred.

Upon the whole case, as it appears of record, we are of opinion that the defendant had a fair and impartial trial, and the judgment is, therefore, affirmed.