106 Ky. 321 | Ky. Ct. App. | 1899
delivered the opinion oe the court.
Appellant, having, been convicted of manslaughter, and sentenced to eighteen years’ imprisonment in the penitentiary, seeks reversal in this court.
After seven jurors had been accepted by the Commonwealth and placed in the bos, the court adjourned for dinner, cautioning the jurors who had been accepted not to talk to any one, or permit ¡any one to talk to them, about the case, but omitting to provide that the jury should be kept together. The jury went at large during the dinner hour. Upon the reassembling of the court, defendant
But it is earnestly contended by counsel -for appellant that this was a right which he could not waive, and the rulings of the court upon the question of waiver of jury trial, or consent to be tried by eleven jurors, are relied upon. Those eases, however, do not seem to us to apply to the case at bar. The right to a trial by jury — which is construed to mean a trial by a jury of twelve men — is a constitutional one, and this court, whether right or wrong, has held it to be a right which can not be waived. It has not, so far as we are informed, been so decided as to any merely statutory right, where no prejudice is shown to have resulted to the accused. We are of opinion that the right to have the jury kept together was one which he might waive, and that he did so in this instance. Pierson v. People, 79 N. Y., 424. [35 Am. R., 524s].
It is further complained that the instruction as to self-defense was erroneous. That instruction was in the usual form, except that the words italicized below were inserted: “. . . Yet, if they shall further believe, from all the
It .appears from defendant’s own testimony that he had been accused by the deceased of stealing whisky, and complaint is made in the brief that the Commonwealth introduced testimony concerning the theft of the whisky. But an examination of the record does not show that the Commonwealth introduced any testimony upon that subject, but simply that, a few hours previous to the killing, a quarrel took place between the two men about some whisky; and this was clearly competent, as tending to show malice. Moreover, the testimony as to the altercation was beneficial to appellant, as it showed that, some two hours before the killing, the deceased, with a knife in his hand, started at appellant, and then took off his coat, and offered
Certain other testimony complained of in the brief does not appear in the record. For the reasons stated, the judgment is affirmed.
The whole court sitting.