100 Ky. 133 | Ky. Ct. App. | 1896
delivered the opinion of tiie court.
The appellant iras indicted for murder and convicted of voluntar!- manslaughter.
It is urged in his behalf that the trial court permitted each juror to be asked “If he had such conscientious scruples on the subject- of capital punishment as would prevent him from finding a, verdict of guilty where the punishment was or might be death,” and, upon certain jurors replying in the affirmative, excused them from service.
Subsection 7 of section 210 of the Criminal Code provides that a juror may be challenged for implied bias, “when the offense is punishable with death, if he enter
It is contended that the amendment which permits the jury to fix the penalty for murder at either death or confinement in the penitentiary for life in their discretion renders this subsection a nullity; but we can not concur in this view.
“Punishable with death” means that which may be punished Avitli death — not that Avhich can be punished in no other way. The question appears to be a proper inquiry touching the competency of the jurors. It is further objected that “two jurors Avho Avere presented stated that they had opinions in the case, Avhich opinions were based upon the rumors of the country, and had heard no one undertake to relate the facts in the case, and being examined by the defendant’s attorneys stated that they had fixed opinions as to the guilt or innocence of the defendant, and that it would require evideuce to reihove or change said opinion. They were then each asked by the court if they felt that they could give the defendant a fair and impartial trial according to the law and testimony without regard to such opinion, and they answered that they could, and the court thereupon held said jurors to be competent.” * * *
This procedure seems to be in reasonably strict compliance with the act of April 10,1888, amending section 207 of the Criminal Code, which provides “that in the trial of any criminal cause the fact that a person called as a juror has formed an opinion or impression, based upon rumor or upon newspaper statements (about the
Some stress is laid upon the fact that the jurors stated, in response to inquiry by the defendant’s counsel, “that they had fixed opinions as to the guilt or innocence of the defendant, and that it would require evidence to remove or change said opinion.”
The whole examination of a person called as a juror is to be taken together to determine his qualification, and this response, evidently given in answer to an inquiry which suggested'the language used, is sufficiently modified and restricted by the response given to the inquiry made by the court. A further objection is the refusal of the trial court to grant a new trial upon the affidavit of Poison as to evidence which he states he had refused to disclose until after the trial. A sufficient answer to all of the objections mentioned is found in section 281 of the Criminal Code. “The decisions of the court upon challenges to the panel and for cause, upon motions to set aside an indictment and upon motions for a new trial shall not be subject to exception.” Morgan v. Commonwealth, 14 Bush, 106; Terrell v. Commonwealth, 13 Bush, 251; Rutherford v. Commonwealth, 13 Bush, 609.
One other objection remains to be noticed, namely, that the court limited the argument to four hours on a
& This court has decided that “the argument of a case may be reasonably limited,” * * * Williams v. Commonwealth, 82 Ky., 640.
Judgment affirmed.
