78 Ky. 639 | Ky. Ct. App. | 1880
delivered the opinion op the court.
Appellant was indicted for murder, tried, convicted, and. sentenced to the penitentiary for life.
On this appeal it is claimed that the court erred in directing the jury to view the place of the killing in the absence of the accused. Section 236 of the Criminal Code authorizes the judge of the trial court, when in his opinion it is necessary, to direct that the jury be taken in the custody of the sheriff to the place of the alleged killing, which is to be pointed out to them by the judge or by some one appointed by him for that purpose. In this instance the court appointed a brother of the accused and a son of the deceased to accompany the jury and point out the premises, but refused to allow the prisoner to be present. What was said or done by those who accompanied the jury does not appear, but it may be assumed that they did what the order of the court directed, and no more; that is, they simply pointed out the place of the killing, and showed the relation of the accused and the deceased to each other, as testified to on the trial.
It is insisted that this is a violation of the 12th section of the Bill of Rights, which provides that the accused shall have the right to meet the witnesses face to face.
It cannot be denied that this provision of the constitution contemplates that the accused shall always be present when testimony is offered to be given against him, and that, as a matter of fact, the simple act of pointing out to the jury, in the absence of the prisoner, the place where the offense is alleged to have been committed, is the giving of evidence in the absence of the accused, and is a violation of the provision of the constitution above quoted. (State v. Bertin, 24 La. An., 46.)
The inquiry, then, is, is this such an error as will, under the statute, authorize a reversal?
In felony cases, section 340 of the Criminal Code, which-went into effect January 1st, 1877, provides:
“A judgment of conviction shall be reversed for any error of law to the defendant’s prejudice appearing on the record.”'
By an act approved March 4th, 1880, that section was amended so as to read: “A judgment of conviction shall be reversed for any error of law appearing on the record, when, upon consideration of the whole case, the court is. satisfied that the substantial rights of the defendant have been prejudiced thereby.”
If this amendment is ordinarily to have any effect, it must be construed to mean that the power of this court to reverse in felony cases depends upon two things: First. That an error appears on the record. Second. The court must be satisfied, from consideration of the whole case, that the substantial rights of the accused have been prejudiced by the error complained of. But while the statute receives this construction, it must be allowed a certain flexibility which will exclude from its operation cases not reasonably presumed
In the case under consideration we may safely say that it appears affirmatively that appellant was not prejudiced by the refusal of the court to allow him to be present when the jury viewed the place of killing. The sheriff in whose charge the jury was placed was enjoined by the court to allow no one to converse with them, and directed that the witnesses appointed to accompany the jury should do nothing more than point out the premises. What was done by the jury or in their presence, while on this mission, does not
When, under section 236 of the Criminal Code, the court ■directs a view of the place of the alleged crime by the jury, the accused, as well as the judge of the court, should be present. The presence of the prisoner and of the judge is as important as if evidence was being heard in court.
Judgment affirmed.