Apkins v. Commonwealth

• Decision Date: 31 May 1912
• Citation: 147 S.W. 376,148 Ky. 662
• Parties: APKINS v. COMMONWEALTH. [d]
• Court: Kentucky Court of Appeals

147 S.W. 376

148 Ky. 662

APKINS v. COMMONWEALTH. ^[d]

Court of Appeals of Kentucky.

May 31, 1912

Appeal from Circuit Court, Fayette County.

Peter Paul Apkins was convicted of bigamy, and appeals. Affirmed.

Alpha Hubbard, of Lexington, for appellant.

James Garnett, Atty. Gen., and M. M. Logan, Asst. Atty. Gen., for the Commonwealth.

WINN J.

Peter Paul Apkins on May 24, 1911, married in Paris, Ill., Miss Bertha Kohler. A couple of days later he married in Lexington, Ky. Miss Elizabeth Young. The Fayette grand jury indicted him for bigamy. He was convicted, and appeals here.

He complains that his demurrer to the indictment should have been sustained. The text of the indictment is as follows "The grand jury of Fayette county in the name and by the authority of the commonwealth of Kentucky accuse Peter P Apkins of the crime of bigamy committed as follows, viz That said Peter P. Apkins on the 26th day of May, 1911, in the county aforesaid, and before the finding of this indictment having a wife then living whom he married in the state of Illinois on the 24th day of May, 1911, and whose name was Miss Bertha Kohler when he married her, unlawfully married Elizabeth Young, against the peace and dignity of the commonwealth of Kentucky."

The complaint is based upon the case of Davis v. Commonwealth, 13 Bush, 318, where it was held that an indictment for bigamy was insufficient which charged a second marriage; the defendant "having a husband then living." That indictment was held bad because it did not inform the accused of the name of the person to whom the prosecution expected to prove the defendant's first marriage, nor the state or country where the alleged first marriage occurred. The indictment in the case at bar gave the name of the alleged first wife, and the date of, and the state where, the alleged first marriage occurred. It did not therefore leave the defendant in the predicament in which was the defendant in the Davis Case--a necessity to stand prepared to meet proof of marriage to any and every person and in any and all countries. Certainly the charge that he had married Bertha Kohler in Illinois sufficiently apprised the defendant of what he had to answer without charging the precise county in which that marriage occurred. The absence of the county from the indictment is the sole and insufficient objection to it.

The next ground urged for reversal is that the court refused to permit the defendant to examine the jurors separately on their voir dire, but compelled an examination of the entire panel in a body. We are not permitted to review this action of the trial court. Section 281, Criminal Code; Curtis v. Commonwealth, 110 Ky. 845, 62 S.W. 886, 23 Ky. Law Rep. 267; Powers v. Commonwealth, 114 Ky. 237, at page 274, 70 S.W. 644, 1050, 71 S.W. 494, 24 Ky. Law Rep. 1007, 1350; Mount v. Commonwealth, 120 Ky. 398, 86 S.W. 707, 27 Ky. Law Rep. 788. And, while we are not permitted to reverse for this reason, we are impelled to express our view that the defendant in a felony case should have this right of individual examination of those presented as prospective jurors in his impending trial. It is important to him that he may know that he may have opportunity to learn the facts as to possible relationship, whether there exists any bias because of the sundry reasons tending to create it, whether the juror's mental status toward the case will be one of first impression when he hears the evidence, and the various facts which might support a challenge for cause or might afford to the defendant a satisfactory basis for peremptory challenge. Section 213 of the Criminal Code demands this right of individual examination; and, for the guidance of the trial courts, we give it as our view that it should be allowed as a matter of right when asked for. The practice is consistent with general authority and with the natural demands of reason and justice.

It is next urged that there was a failure of any sufficient proof of the first marriage. The commonwealth introduced upon this...