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