140 Ky. 34 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
Appellant, S. S. Williams, was indicted by the grand jury of Magoffin county, for the crime of willful and ma
It is insisted by counsel for appellant that the verdict is fatally defective because the jury failed to find the defendant guilty. While the verdict is informal and not strictly correct, according to the provision of section 257 of the Criminal Code, we conclude that it would be highly technical to hold that the failure of the jury to say in its verdict that appellant was guilty rendered tho judgment of conviction invalid. Under the instructions of the court the jury could not fix appellant’s punishment without finding him guilty. Therefore, when they in their verdict fixed his punishment at a fine and imprisonment, they in effect found him guilty as charged in the indictment. The rule is well settled in this State that, if a verdict is not as specific as desired, the correct practice is then and there, before the jury is discharged, to have them reform it. Allowing the jury to he discharged without objection, and without motion to have them correct or extend their verdict, will be deemed a waiver of formal defects in it. And it must then affirmatively appear that the substantial rights of the accused have been prejudiced by the informality. The presumption will not be indulged that his rights were prejudiced. (Gillum v. Commonwealth, 121 S. W. 445.)
In this case appellant’s counsel made no motion to reform or make the verdict more specific. He permitted the jury to be discharged, and several days later made the motion to have the judgment set aside. That being the case, he waived the formal defects of the verdict.
Appellant can not complain of the fact that the judgment was modified so as to relieve .him of the penalty of hard labor; this was to his advantage.
Judgment affirmed.