Branham v. Commonwealth

• Decision Date: 19 June 1925
• Citation: 209 Ky. 734,273 S.W. 489
• Parties: BRANHAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

273 S.W. 489

209 Ky. 734

BRANHAM v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 19, 1925

Appeal from Circuit Court, Pike County.

Sylvan Branham was convicted of an offense, and he appeals. Reversed and remanded for new trial.

Picklesimer & Steele, of Pikeville, for appellant.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty Gen., for the Commonwealth.

SETTLE C.J.

The appellant Sylvan Branham, was indicted for and tried and convicted in the Pike circuit court of the crime of unlawfully and feloniously detaining Leora Logan, a female against her will, "with intent to have carnal knowledge with her himself," and his punishment fixed by verdict of the jury and judgment of the court at confinement in the penitentiary for the period of two years. He has appealed.

Only one of the several grounds filed in support of his motion for a new trial made and overruled in the court below, is urged by the appellant on the appeal for the reversal of the judgment of conviction, viz., error, alleged to have been committed by the trial court in permitting him to be tried and convicted by a jury composed of 7 instead of 12 jurors as required by the Constitution and laws of the state, whereby he was, as claimed, deprived of an inalienable right guaranteed him as a citizen of the state by the Constitution and laws thereof.

The transcript of the record filed on the appeal contains all orders of the circuit court setting forth the procedings had upon the appellant's trial therein, including that showing the selection and impaneling, by agreement of the commonwealth and defendant, of the jury of 7 jurors by which he was tried, and the verdict returned by them; the orders showing the filing and overruling of his motion and grounds for a new trial, the exception to that ruling, and also the judgment of the court approving the verdict and pronouncing of sentence thereon. So the single question presented for decision by the appeal is: Was the appellant's conviction of the crime charged obtained through or by means of such a trial by jury as is guaranteed by the Constitution and laws of the state? By section 7 (Bill of Rights), Constitution, it is declared:

"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."

The ancient mode of trial by jury, the right to which is guaranteed one charged with crime, by the section, supra, is a trial by jury according to the forms and requirements of the common law, the essential features of which were and are that he be put upon his trial in a court of justice, presided over by a judge, and that he be tried by a jury of the vicinage composed of 12 men, all of whom must agree upon a verdict. Blackstone's Commentaries, vol. 2, p. 350; Hale's Pleas of the Crown, vol. 1, p. 33; Cooley's Constitutional Limitations, 391; Capital Traction Co. v. Hof, 174 U.S. 1, 19 S.Ct. 580, 43 L.Ed. 873; Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061; Wendling v. Com., 143 Ky. 587, 137 S.W. 205.

Section 11 (Bill of Rights), Constitution, likewise guarantees to the accused in all criminal prosecutions certain other important rights, not necessary to mention because not here involved. Section 248 of that instrument provides that a grand jury shall consist of 12 instead of 16 persons, as required by the preceding Constitutions of the state and the common law, and that 9 of the 12 concurring may find an indictment. It also provides:

That "in civil and misdemeanor cases, in courts inferior to the circuit courts, a jury shall consist of six persons."

It will be observed that this section is silent as to the number of persons necessary to constitute a petit jury in the circuit court, which silence continues in force the requirement that the jury in that court shall consist of 12 persons. It is manifest, however, from the language employed in this section (248, Constitution), that its provisions reducing the number of grand jurors from 16 to 12, and of the petit jury in civil and misdemeanor cases, in courts inferior to the circuit courts, from 12 to 6 jurors, are self-executing.

The same section also contains the following provisions:

"The General Assembly may provide that in any or all trials of civil actions in the circuit courts, three fourths or more of the jurors concurring may return a verdict, which shall have the same force and effect as if rendered by the entire panel. But where a verdict is rendered by a less number than the whole jury, it shall be signed by all the jurors who agree to it."

Obviously, the provisions of section 248, supra, last quoted, merely confer upon the General Assembly the power to effect, by legislative enactment, the changes thereby authorized with respect to the finding and rendering of verdicts by juries in trials of civil actions in the circuit courts, and left to the option of that body the matter of its exercise, which option the General Assembly did, in fact, exercise by the subsequent enactment of section 2268, Kentucky Statutes, in substantially the same language used in section 248, Constitution.

It cannot be doubted that the changes in the jury system of the state, or, more correctly speaking, in the "ancient mode of trial by jury," thus made and authorized by the latter section of the Constitution, are, as held in Lakes v. Goodloe, Judge, 195 Ky. 240, 242 S.W. 632, to be regarded as but modifications of that right permitted by section 7, Constitution, supra. But, in our opinion, the decision of the question at issue is controlled by section 7 (Bill of Rights) Constitution, and section 2252, Kentucky Statutes, which provides:

"A petit jury in the circuit court shall consist of twelve persons, and in all trials held in courts inferior to the circuit court, or by any county, police, or city judge, or justice of the peace, a jury shall consist of six persons; but the parties to any action or prosecution, except for felony, may agree to a trial by a less number of persons than is provided for in this section."

The only modifications, therefore, of the ancient mode of trial by jury made by the Constitution as contemplated and sanctioned by section 7, Bill of Rights, are contained in section 248 of that instrument, and in sections 2252-2268, Kentucky Statutes, subsequently enacted by the General Assembly because by it deemed necessary to put into effect such of the provisions of section 248, Constitution, as were not self-executing. But it will be observed that neither by any provisions of that section of the Constitution, nor of either of the two sections of the statutes, supra, are those modifications, or any of them made to include or apply to prosecutions or trials for felony.

The three sections concur, however, in the requirement that a petit jury in the circuit court shall consist of 12 persons, and together with section 7 (Bill of Rights), Constitution, preserve to any and all persons charged with felony the "ancient mode of trial by jury."

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