Bennett v. Commonwealth
| Decision Date | 11 May 1917 |
| Citation | 175 Ky. 540 |
| Parties | Bennett v. Commonwealth. |
| Court | Kentucky Court of Appeals |
Appeal from Graves Circuit Court.
STANFIELD & STANFIELD for appellant.
M. M. LOGAN, Attorney General, and D. O. MYATT, Assistant Attorney General, for appellee.
This is the second appeal from a judgment of the Graves circuit court entered upon a verdict finding the appellant, Bozzie Bennett, guilty of grand larceny, as charged in an indictment returned against him for that crime, and fixing his punishment at confinement in the penitentiary for a minimum term of not less than two years and a maximum term of not more than two years and nine months. The opinion on the first appeal is reported in 171 Ky. 63. The judgment of conviction was reversed on that appeal because of error committed by the circuit court in admitting incompetent evidence on the first trial of appellant. As the facts connecting appellant with the commission of the crime are fully set forth in the opinion on the first appeal, it is unnecessary to here repeat them.
The grounds urged by appellant's counsel for the reversal of the judgment on the present appeal are that the court erred: (1) In admitting incompetent evidence. (2) In failing to admonish the jury as to the effect of certain evidence introduced to impeach one Bunk Adams. (3) In failing to properly instruct the jury and to give the whole law of the case. (4) Because the verdict of the jury was arrived at by lot. (5) Because of misconduct of the county attorney.
A part of the evidence objected to was furnished by the testimony of W. B. Sullivan, sheriff of Graves county, as to what occurred when he went to Memphis, Tenn., where appellant had been arrested, to return with him to Graves county, this state, for trial, and a conversation that he then had with appellant. The statement of Sullivan objected to was to the effect that upon his making inquiry at the Memphis jail for appellant and being conducted by a jail official to the cell in which appellant was confined, the latter then admitted to the jail official that he had previously claimed to him that his name was Brown, but then confessed the deception, saying that the sheriff, Sullivan, knew him. All of this evidence was competent and was, therefore, properly admitted. Appellant's counsel also complain of the further statement of Sullivan that he was told by the same jail official, when he asked him if he had Bozzie Bennett in custody, that he had no prisoner of that name, but said he had one answering the description Sullivan gave of Bennett, who had told him his name was Brown. This statement was made immediately before Sullivan was led by the jail official to appellant's cell, where the conversation in which appellant admitted his identity occurred. The conversation which occurred between Sullivan and the jail official in the absence of appellant was incompetent, and should have been excluded, but its admission could not have been prejudicial to the latter in view of his later confession in the presence of the jail official.
Appellant's complaint of the testimony of J. R. Bennett, with reference to an offer made to him to get Bill Bennett, an important witness against appellant, to leave and not testify against him, is without merit. The above proposition was made J. R. Bennett at his home and also at the office of appellant's attorneys, when he, appellant, was present. It, therefore, appears that the proposition made to J. R. Bennett, if not induced by appellant, was made with his knowledge and assent. Hence, he had no cause to complain of the evidence in reference thereto and was not prejudiced by its admission.
Appellant's complaint of the failure of the trial court to admonish the jury as to the effect of certain evidence introduced to impeach the witness Bunk Adams cannot be relied on by him as a ground of reversal, as his counsel did not object at the time of the admission of the evidence to the court's failure to admonish the jury that the evidence in question could be considered by them only for the purpose of effecting the credibility of Adams, nor did counsel request the court to give such an admonition. We have repeatedly held that in order for the accused to take advantage of such an error on appeal, he must have called the attention of the court to it at the time it was committed and thereby allowed it an opportunity to correct the error. Ochsner v. Commonwealth, 128 Ky. 761; Wright v. Commonwealth, 155 Ky. 750; Hayes v. Commonwealth, 171 Ky. 291; Renaker v. Commonwealth, 172 Ky. 714; Day v. Commonwealth, 173 Ky. 269.
Appellant's complaint of the instructions is equally without merit. Our examination of the instructions convinces us that all of them except instruction No. 1 are free from error. The objection to instruction No. 1 goes to the last clause thereof which is as follows:
"The jury will find him guilty of grand larceny, as charged in the indictment, and fix his punishment at confinement in the penitentiary for a minimum term of not less than one year or a maximum term of not more than five years, at their discretion within said limits."
The criticism of the instruction is that it directs the jury to fix a minimum term or a maximum term within the limits of the punishment prescribed by the statute, instead of requiring them to fix both a minimum and a maximum term within the limits of the prescribed punishment. Such an instruction was condemned in Biggs v. Commonwealth, 162 Ky. 103, and if the jury, by their verdict in this case, had failed, as in the Biggs case, to find both a minimum and maximum term within the prescribed limits of punishment, such failure would constitute reversible error as held in that case. But in this case the verdict was as follows:
"We, the jury, find the defendant guilty, as charged in the indictment, and fix his punishment at confinement in the penitentiary for a minimum term of not less than two years and a maximum term of not more than two years and nine months."
It will thus be seen that the jury, in fixing the punishment in this case, adopted precisely the method that the instruction, if written in conformity to the opinion in the Biggs case, would have directed them to adopt. Therefore despite the error referred to in the instruction, the verdict of the jury fixed the punishment of appellant in conformity to the statute; indeed, could not have fixed it more correctly if the instruction had been in correct form. Obviously, no substantial right of the appellant was prejudiced by the error in the instruction, and this being true, the error furnishes no ground for reversal.
Appellant's most urgent contention is that he is entitled to a reversal because the verdict of the jury was arrived at by lot. This was attempted to be shown by the joint affidavit of five of the jurors in the case, filed in support of his motion and grounds for a new trial, in which it was, in substance, stated that, at the suggestion of one or more members of the jury made after the question of appellant's guilt had been unanimously agreed upon by the jury, each member of the jury wrote upon a slip of paper in figures the number of years he thought appellant should be confined in the penitentiary, which was followed by the addition of these figures and the total then divided by twelve, giving as a result the two years and nine months fixed by the verdict of the jury as the maximum term of appellant's punishment. After the filing of the affidavit referred to, a joint affidavit from eleven of the jurors, including four of those who had joined in the affidavit filed by appellant, procured by the Commonwealth's attorney, was filed in opposition to the motion for a new trial. This affidavit, while in no respect contradictory of that filed for the appellant, was more definite in its statements as to the facts: (1) That the jury, each juror separately expressing and declaring his opinion and vote to that effect, unanimously agreed as to the appellant's guilt before taking any steps to determine his punishment. (2) That after thus unanimously finding appellant guilty, the jury agreed to set down on a paper, each separately, the number of years he thought appellant should be sent to the penitentiary, after doing which the whole number was added up by each member and...
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