143 Ky. 587 | Ky. Ct. App. | 1911
Opinion op the Court by
Affirming.
The appellant, Wendling, is a native and citizen of the republic of France. He emigrated to this country in 1907 and located in Louisville, Kentucky, where he was soon afterwards married. In the early part of November 1909, he obtained employment as janitor at Saint John’s Catholic Church in Louisville, and his wife was also employed as the housekeeper of the priest in charge of. the church. In June, 1910, he was indicted by the grand jury of Jefferson County, charged with the crime of murdering Alma Kellner, a child between eight and nine years of 'age. Under this indictment he was convicted, and his punishment fixed at confinement in the State prison for life.
' In the lower court he filed a number of grounds for a new trial, but we will only, notice such of them as are relied upon by his counsel in this court in argument and brief, as the other grounds assigned in the motion for a new trial do not seem to be of sufficient importance to justify us in setting them out in the opinion.
When the case was called, for trial, his counsel in writing moved the court to empanel “a jury de medietate linguae” to try the prosecution against him — resting his motion upon the ground that appellant as an alien was entitled, under the Constitution and laws of this Commonwealth, to such a jury. The triál judge overruled his motion and put him upon trial before a jury selected in the manner provided in the statute for the trial of criminal cases. The refusal of the court to grant this motion is one of the principal errors assigned, and will be disposed of before considering the other grounds presented for reversal.
Section 2254 of the Kentucky Statutes, found in the chapter relating to jurors, their mode of selection and qualifications, provides that—
*590 “Juries de medietate linguae may be directed by tbe court” and it is tbis section that counsel relies upon as entitling bim as a matter of right to demand sucb a jury. Tbe right of an alien to demand a jury de medietate lin-guae is for tbe first time presented to tbis court for its consideration and an examination of tbe published opinions of other courts discloses tbe fact that in very few reported opinions has it ever been considered by a court of last resort in tbe United States. In North Carolina, in 1825, tbe question was presented to the Supreme Court of that State in tbe ease of the State v. Antonio, reported in Hawk’s Reports, Vol. 4, page 200, and tbe court denied tbe right of an alie'n to demand sucb a jury. In tbe People v. McLean, a case decided by tbe Supreme Court of New York in 1807 and reported in Johnson’s Reports, Vol. 2, page 380, tbe trial court allowed tbe prisoner the privilege of a jury de medietate linguae, and in a brief opinion tbe court said that it was proper to do so. In tbe case of Respublica v. Mesca, found in Dallas’ Reports, Vol. 1, page 73, a Pennsylvania court of oyer and terminer granted tbe request of alien prisoners for a jury de medietate linguae. In Richards v. Commonwealth, decided by tbe Supreme Court of Virginia in 1841, and reported in 11 Leigh, page 690, the question of tbe right of an alien prisoner under a statute like ours to a jury de medietate was elaborately considered, and tbe court held that tbe right to order sucb a jury was within tbe discretion of tbe trial court.
A jury de medietate linguae is one composed half of aliens and half of denizens, and by an ancient act of Parliament an alien might claim as a matter of right both in civil and criminal cases sucb a jury. Blackstone’s Commentaries, Vol. 3, page 361; Bouvier’s Law Dictionary, Title Jury; Forsythe’s History of tbe Law of Juries, page 228. But, it is obvious from tbe scanty mention of juries of tbis character by tbe common law writers as well as tbe dearth of court opinions that tbe practice of allowing sucb a jury bad grown into non-use in England long before tbe establishment of tbis government ; and tbe fact that a law so antiquated and obsolete should be found incorporated in tbe statutes of tbis State, may well be regarded as one of the curiosities of legislation. But the section as it now stands was in, the General Statutes adopted in 1873, tbe Revised Statutes adopted in 1854, and seems to have been banded down
“The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as'may be authorized by this-Constitution.”
And so, when we wish to ascertain what is meant by the right of trial by jury as expressed in the Constitu-
“ ‘ Trial by jury’ in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their'verdict if in his opinon it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the hooks.”
In Thompson v. State of Utah, 170 U. S., 343, 42 L. Ed., 1061, the court had occasion to consider the constituent elements of a common law jury, and in the course of an elaborate opinion by Justice Harlan, it is said:
“So, in 1 Hale’s P. C., 33: ‘The lajy of England hath afforded the best method of trial that is possible, of this and all other matters of fact, namely, by a jury of twelve men all concurring in the same judgment, by the testimony of witnesses viva voce in the presence of the judge*593 and jury, and by the inspection and direction of the judge.’ It must consequently he taken that the word ‘jury’ and the words ‘trial by jury’ were placed in the Constitution of the United States with reference to the meaning’ affixed to them in the law as it was in this country and in England at the time of the adoption of that instrument.” See further, Cooley’s Constitutional Limitations, page 391.
"We, therefore, conclude that when a person is put upon his trial in a court presided over by a judge who directs the proceedings and before a jury composed of twelve men, and they all agree upon the verdict, the accused has had a trial by a jury according to the ancient mode, and can not complain that any constitutional right has been denied him merely because the qualifications of the jurors or the manner of their selections differs from what it was at common law or is changed from time to time to make the system more efficient.
Having this view of the matter, it follows that the only remaining question is — does the statute require that a jury de medietate linguae shall be granted as a matter of right when requested, or, is it a privilege left to the discretion of the trial court. The statute provides that such a jury “may be directed by the court”— not that it shall be; and when we consider that there is every reason why such a jury should not be allowed, and no apparent reason exists why it should, we think that the disposition of the matter should be left to the discretion of the trial court, subject to review by this court in any case in which it is made clearly to appear that the discretion has been abused. Being of the opinion that the trial court did not in this case exceed his discretion we decline to disturb his ruling on this matter.
Another error assigned is the refusal of the court to sustain a challenge to the penal of jurors selected to try the appellant. It appears from the record that the appellant by motion—
“Challenges the array of special jurors summoned for this day, and moves the court to quash the venire therefor, because these jurors were not selected as provided by law. He says he is informed and upon such information says that the names of these jurors were not ■ selected and copied from the Assessor’s book by the jury commissioners in person but that said act was done by*594 another and not in the presence of or under the direct supervision of the commissioners.”
We held in L., H. & St. L. Ry. Co. v. Schwab, 127 Ky., 82, that it was the duty of the jury commissioners to write the names of the jurors on slips of paper and place them in the cylinder or wheel, and that if this service was performed by clerks or others, it was ground of challenge to the panel; and upon it being made to appear by affidavit or proof that the jury was not selected by the commissioners in the manner provided by law, the panel should be discharged. But the motion made by counsel was not supported by affidavit or other proof, and, therefore, we think the court properly overruled it. The jury commissioners are officers of the court, and the presumption is that they performed their duty in the manner required by law. This presumption is not to be overthrown by a mere motion setting out that they did not properly or faithfully discharge their duties. If a party to a civil or criminal proceeding desires to attack the validity of the acts of the jury commissioners, he should present or offer to present to the court some evidence, in the form of affidavits or otherwise, that they did not discharge their duties iu the manner provided by law. Where it is attempted to challenge their acts by a motion only, the court is not obliged to presume that its officers neglected or failed to perform their duties, nor is it required to put them upon proof that they did. There must be some showing of neglect or failure of duty presented to the court before it becomes necessary for the court to order an inquiry into the manner in which the jurors were selected. Here we are asked to say that the court erred in refusing to sustain a challenge to the panel when there is no issuable statement of fact in the record that would justify us in looking into the question or enable us to determine whether or not the court abused its discretion.
Another error complained of relates to the testimony offered on the trial, and this makes it necessary that we should briefly state the facts so that the point of the objection may be apprehended. Alma Kellner on the morning of December 8. 1909. left her home for the purpose of attending mass at Saint John’s Catholic Church, a short distance from where her parents, lived. On her way to church she was seen and recognized by two or three persons, who knew her, and other witnesses tes
“Q. I want to ask you if you were over in the church, while you were standing in the sanctuary close to the sacristy door — if you had a conversation with Father Schuhmann there? A. Yes, sir Q. Was the janitor there at that time in your sight, was any one present? A. I remember after we entered the church through the sacistry on the east side of the building, I remember seeing a man that was apparently performing the duties of janitor, but I didn’t see his face. Q. I will ask you what you said to Father Schuhmann if it was said in the presence of the man that was acting as janitor. * * * A. After we entered the church, got into the church proper, Father Schuhmann and I stood there directly in front of the altar communion railing, which I judge to be twenty feet from the altar; I asked him quite a number of questions,’ and two questions-1 remember very distinctly. I asked him all about his help. He told me that he had a janitor. I then asked him whether his janitor was a white or colored man. He told me he was white. Seeing the registers in the floor, I asked him also about the heating apparatus, which he explained to me at that time, and I can’t recollect the answers he gave me at that time. • That practically completes my recollection relating to the important parts of the interview. Q. Was that conversation within hearing distance of the man you say was performing the duties of janitor? A. I.talked loud enough so a man present could understand me fully fifty or sixty feet from where we were standing. Q. About how far was this man that you say was working about the church standing from you at that time? A. He couldn’t have been exceeding twenty or twenty-five ■feet.”
All of this evidence was objected to by counsel for ■the appellant upon the ground that it was pot shown that appellant was in the church or heard any part of the conversation between Father Schuhmann; and Fehr. But
‘ ‘ Gentlemen of the jury: The answers just given relative to this conversation with Father Schuhmann can be considered by you if from this evidence you believe that the person descrbed as performing — apparently performing — the duties of janitor was the defendant in this case, Joseph Wendling, and if these statements were made in his hearing. If you believe, however, that the person described by Mr. Fehr as performing the duties of janitor was not Joseph Wendling, or that the statements were not made in his hearing, you should disregard them and not consider them as evidence in this case. ’ ’
To this statement of the court exception was also saved. It is also proper to add that Wendling testified that he was not present in the church on the occasion mentioned, and did not hear any of the conversation between Father Schuhmann and Fehr. It is now the contention of counsel for appellant that it was error for the reasons stated to admit the evidence of Fehr, and that the court committed further error in submitting to the jury the question whether or not they should accept Fehr’s statement as evidence against the appellant. We think the statements of Fehr were competent and relevant as tending to show that appellant became alarmed at inquiries directed to the condition of the basement of 'the church, and the apprehension that these inquiries might lead to a more thorough examination of the basement, induced him to leave the church and' city under the circumstances that he did. The evidence of Father Schuhmann conclusively established that appellant was the only person about the church who performed janitor service; and when Fehr testified that the person he saw in the church was performing this service and was near enough tc hear his conversation with Father Schuh-mann, appellan t was sufficiently connected with the transaction to make what was said admissible as evidence against him. In cases like this, where the Commonwealth must establish the guilt of the accused, if at all. by circumstantial evidence alone, a wide range must necessarily be allowed in the examination of witnesses, and every relevant fact and 'circumstance that tends to connect the accused with the • commission of the • offense charged against
“If upon another trial the same evidence is offered, the court should admonish the jury that it is only competent against Magan if they believe from the evidence beyond a reasonable doubt that he consented to what was said by Hardwick in his pfesence, and then only for the purpose of showing motive and intent.”
Admonitions of this character made by the court to the jury during the progress of the trial have never been
It is further insisted that the court should have permitted Dr. Ellis Duncan, the coroner of Jefferson County to testify that during May and June, 1910, a number of decomposed bodies were found on the public dumps of the city, where they had been hauled from medical schools. We are unable to perceive what relevancy this offered evidence had to the matter under investigation. There was no attempt to show that any bodies or parts of bodies from any medical school or elsewhere were ever found in the basement of the church; nor was there any evidence that any person had at any time attempted to place bodies or parts of a body from medical schools in this building. The only body ever found there was the one identified as the body of Alma Kellner, and evidence of what was found on the dumps of the city was entirely foreign to the issue.
It was also assigned as error that the court refused to permit counsel for appellant to show by Father Schuh- • mann that the law of the Catholic Church provided that a church that had been desecrated by the commission of a crime should be re-consecrated before church service was held in it, and that there had been no re-consecration of this church. We are unable to understand how this evidence, if it had been introduced, could have thrown any light upon the question of the guilt or innocence of appellant, and upon this point we have not been furnished with any reason by counsel. It seems plain that the admission of this evidence would have introduced in 'the case a matter that had not the remotest connection with the subject being investigated.
It is further .complained that the trial court refused to require the Commonwealth to produce before trial for the inspection of the accused and his counsel clothing and other articles that were subsequently introduced as evidence by the Commonwealth. We are not prepared to say that the court abused a sound discretion in refusing this, request. We know of no practice that makes it incumbent upon the Commonwealth to submit before the trial for the inspection and examination of the accused or his counsel articles in the possession of the Common-
On the trial it was proven that appellant in the presence of witnesses voluntarily stated in substance that— “If I did kill that girl, nobody saw me but God, and he can’t come down and tell it; I am pure, I am innocent ; I will go back without papers, and when I go back I will tell who done it; me kill no little girl; if I did kill her, nobody saw me do it but God, and he can’t come down and tell it. ’ ’
And it is now insisted that the court erred to the prejudice of appellant in instructing the jury that —
“If they believe from the evidence to the exclusion of a reasonable doubt that any statement or statements detailed in evidence as having been made by defendant amounted to a confession by him of guilt of either or any of the offense referred to in the foregoing instructions, they are instructed that a confession of the accused, if any there was, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed.”
It is said that the declarations of appellant did not amount to a confession and, therefore, no instruction upon this feature of the case should have been summit-ted. The trial judge in the opinion overruling the motion for a new trial, said upon this point:
“There being a difference of opinion between counsel for the Commonwealth and defendant as to whether or not defendant’s statement amounted to a confession, defendant being a foreigner, speaking the language quite imperfectly, the court deemed it due to him to qualify the usual instruction upon the subject of a confession by submitting to the jury whether or not they believed to the exclusion of a reasonable doubt that any statements made by him amounted to a confession. The meaning of*601 this particular statement was one ahont which a wide difference of opinion might well exist, and did exist, as shown by the argument of counsel in this case. If the court had failed to give an instruction upon the subject of a confession, it might well have been contended by defendant and his counsel that he had been prejudiced by reason of the fact that this statement was assumed by the Commonwealth, and argued by counsel for the Commonwealth, to be a confession of guilt. ’ ’
We think the reasons given in support of this instruction are well considered. The statements made by appellant, although not strictly speaking confessions of guilt, were properly admitted as evidence; but as aptly said by the trial judge, they might have been accepted by the jury as confessions, and hence to guard against any harmful inference the jury might draw from them, the instruction advising the jury of the conditions under which a confession might be received as evidence of guilt was beneficial and not prejudicial to the accused.
Another complaint is that the appellant did not have such a public trial as was guaranteed by the Constitution. It appears that during the trial it was necessary to preserve order and'prevent the court room from being over-crowded that policemen should be stationed at convenient places and that admission to the court room should be limited to such a number as it would comfortably accommodate. But at no time during the trial was any complaint made of discrimination against the appellant or his friends or others who were interested in his behalf, nor was any favoritism or partiality shown persons seeking admission. The only purpose of limiting the admissions to the room and of having policemen present was that the trial might be conducted in an orderly manner, and we. are entirely satisfied that no constitutional right of the accused was infringed by the efforts of the trial court to preserve order and prevent confusion and disturbance. Nor did the direction of the court in these respects prejudice in any manner the rights of appellant. The provision in section 11 of the Constitution recognizing the right of an accused to have a public trial does not mean that all of the public who desire to be present shall have opportunity to do so or that the trial judge may not without favor or discrimination limit the spectators to the capacity of the room in which
“The requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.”
In Jackson v. Commonwealth, 100 Ky., 239, 66 Am. St. Rep., 336, it was held not to be error for the trial judge, without discrimination or favoritism to direct the sheriff to have tickets to the court room limited in numbers to the seating capacity of the room, and to give them in the order in which requests were made to him for them.
The foregoing disposes of the assignment of errors made by counsel, and upon the whole case we feel satisfied that the appellant had a fair trial,and that no error to the prejudice of his substantial rights was committed. Nor did anything occur subsequent to the indictment or during the trial that denied to appellant due process of law, or that was violative of any right or privilege guaranteed to him by the Constitution of this State or of the United States.
Wherefore, the judgment is affirmed.
