Bailey v. Com.

• Decision Date: 27 January 1903
• Citation: 71 S.W. 632
• Parties: BAILEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

71 S.W. 632

BAILEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 27, 1903

Appeal from circuit court, Magoffin county.

"Not to be officially reported."

Shimbo Bailey was convicted of an assault with intent to kill, and appeals. Reversed.

James P. Adams, for appellant.

Clifton J. Pratt and M. R. Todd, for the Commonwealth.

BURNAM C.J.

This is an appeal from a judgment of the Magoffin circuit court sentencing the appellant, Shimbo Bailey, to imprisonment in the penitentiary for one year for having maliciously cut and wounded Lee Arnett, with the intent to kill him.

The first ground relied on for reversal is that the venue of the offense charged in the indictment is not shown by the proof in the case. Subsection 3 of section 124 of the Criminal Code provides that the indictment must be direct and certain as regards the county in which the offense was committed, and the evidence, equally with the allegation, must show the county in which the offense was committed. A very full and interesting discussion of these questions is found in chapter 24, 1 Bish. New Cr. Proc. There is no evidence in the bill of exceptions in the case that the crime for which appellant was convicted was committed in the county of Magoffin, and as said in Wilkey v. Com. (Ky.) 47 S.W. 221, "It would be going too far to sanction a verdict based upon the existence of an indispensable fact, which the jury could not find from the evidence before them to exist."

And we think the trial court erred, to appellant's prejudice, in another step in the trial. After the jury had considered the case for some time, they returned into court and announced that they had not agreed upon a verdict, and requested the court to explain the meaning of the term "malice aforethought," which the court proceeded to do in the absence of the defendant. The jury then retired, and in a short time returned and announced their verdict. Section 183 of the Criminal Code requires that, upon the trial of an indictment for a felony, the defendant must be present during the trial. In Meece v. Com., 78 Ky. 586, it was held error to instruct the jury in the absence of the accused. The court said: "When instructions are given by the court or when the jury, returning from their room, desire to be further instructed, the presence of the accused is of the greatest importance, as he may be able to suggest to the court or his counsel some information that...