104 Ky. 106 | Ky. Ct. App. | 1898
delivered the opinion of the court.
The questions presented by this, the second, appeal of this case, are few. It is urged that in a case of murder the time at which the crime is charged to have been committed is material, and must be proved as laid. But the rule was universal at common law that the allegation of time in an indictment was immaterial, except where the time of the commission of the act formed an ingredient of the offense, as in the case of Sunday offenses. Bish. New Or. Proc. Sec. 399 et seq.
It is further urged that the indictment as it went before the jury upon the second trial was the same indictment which had been presented to the former jury, and had written upon it their verdict, finding appellant guilty, and fixing his .punishment at death, and that the action of the former jury thus displayed must have prejudicially influenced the minds of the jury who rendered the last verdict, and was in violation of section 270, Code Cr. Proc., which provides: “The granting of a new trial places the parties in the same position as if no trial had been had'. All the testimony must be produced anew, and the former verdict can not be used or referred to in evidence or in argument.”
The principal ground urged for reversal is that the jury were permitted to separate. . It appears from, the affidavits filed upon the motion for new trial that the jury were separated without any order of court, about half the number being taken in charge of a deputy sheriff to their rooms at the hotel, while the remainder went for a walk in charge of another deputy, visited a drug store, where one of them obtained some medicine, and a livery stable, where another juror made some arrangements about his horse. Both officers make affidavit that no communication was had with the jury while they were so separated, or at any time, upon any subject connected with the trial, or upon any subject, without the knowledge of one of the deputies. It further appears that, on the night after the submission, the jury were lodged in four rooms of the hotel, Nos. 40, 42, 43, and 44, which were not connecting rooms; that an unoccupied room (No. 41) was between room 40, in which the deputy was lodged, and room 42, to which some of the jury were assigned; that the room which the deputy occupied was that one furthest away from the entrance to the hotel. The officer makes affidavit that, save himself, no one was in or out of the rooms occupied by the jurors, except upon two occasions, when he accompanied a juror to
It is manifest that the officer, in his affidavit, testifies to-some things which were beyond his knowledge. He could not know what went on in the rooms while he was absent at the closet, nor could he know what took place in the other rooms when he was asleep in his room! It is manifest, that, admitting to be true all his statements of whose truth he could have knowledge, nevertheless the members of this jury might have been improperly approached twenty times over. This record discloses no ground for even a suspicion that such was the case; but the statute was designed to prevent the possibility of tampering with the jury, and also, as we think, to secure to the accused in a capital case an unbiased consideration of the facts by the whole jury, and to prevent, as far as might be by legislation, a few jurors conferring together, agreeing upon a verdict, and endeavoring to force their conclusion upon the rest of the jury. For the attainment of these purposes, the statute is imperative. It not only requires the jury to be kept together in such cases (Crim. Code, Sec. 244); but in section 245, as if to show the importance attached to this requirement, it is further provided that, “when a jury is kept together in charge of officers, the officers must be sworn to keep the jurors together, and to suffer no person to speak to or communicate with them on any subject connected with the trial, and not to do so themselves.” Failure to administer this oath, when properly excepted to, is ground for reversal. Com. v. Shields, 2 Bush, 83. Section 246 provides for the admonition of the
But we are confronted here with the question whether we have jurisdiction to consider this error, which was. for the first time presented upon the hearing of the motion for a new trial. It is urged that in- McDowell v. Com., 4 Ky. Law Rep. 354, it was held by Judge Hines (according to the abstract, the opinion not being obtainable) “that exceptions first raised on motion for new trial can not be considered by this court, save in exceptional cases where the court has ruled erroneously, and the accused had no opportunity to except earlier than on motion for new trial.” In the first place, while it may be inferred from the affidavit of counsel filed upon the motion for new trial in the case at bar that he learned for the first time of the separation of the jury after the verdict had been rendered, it is not definitely so stated. Moreover, the doctrine there laid down, if applicable to this case, has been subsequently overruled in several opinions, and notably in an opinion by the same judge, which will be referred to. It may be also remarked that the exception as shown by the abstract was evidently obiter dictum, for the case was affirmed. It is also urged for appellant that this court has, in more than one case, considered this question when raised for .the first time upon a motion for a new trial, namely, in Blyew v. Com., 91 Ky. 201 [15 S. W. 356], and Minor v. Same, 5 Ky. Law Rep. 176. This question was presented and considered also in Holly v. Same, 18 Ky. Law Rep. 441 [36 S. W. 532]. But in each of those cases it was decided that the action of the lower court in overruling a motion for new trial was proper, as the statutory requirement had not been substantially violated. But in Kennedy v. Same, 14 Bush,
Judge Guffy, dissents from that part of the opinion which holds this court has no jurisdiction to review the error complained of.