Burnam v. Commonwealth
| Decision Date | 31 October 1941 |
| Citation | 289 Ky. 312 |
| Parties | Burnam v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
3. Criminal Law. — Where juror, while jury was having a brief recess in jury room, stepped into hall and conversed with wife regarding purchase of goods for their store in presence of sheriff and his deputy, juror's separation from rest of jury, if it was separation prohibited by statute, and his conversation were not prejudicial to accused (Criminal Code of Practice, secs. 244-246).
4. Jury. — Under statute providing that if regular panel is exhausted by challenges, judge may supply such jurors by drawing from the wheel, or he may direct sheriff to summon any number of bystanders to fill such vacancies, where accused in rape prosecution agreed that court might order a special venire when it was apparent that regular panel would be exhausted without the jury being made up, accused could not require that such venire be summoned from names appearing on last returned tax assessor's book which was equivalent to moving that judge draw it from the wheel (Ky. Stats., sec. 2247).
5. Criminal Law. — Where neither motion for new trial nor bill of exceptions contained any reference to exclusion of negroes from the jury, complaint that negroes were excluded from the jury in rape prosecution of a negro could not be considered by the Court of Appeals.
6. Criminal Law. — Where evidence as to whether accused voluntarily confessed that he committed rape or whether confession was extorted from him by officers was sharply conflicting, trial judge correctly instructed jury not to consider written confession for any purpose if they believed from evidence that it was obtained through mistreatment of accused in violation of statute (Ky. Stats., sec. 1649b-1 et seq.).
7. Rape. — Evidence sustained conviction of rape.
Appeal from Fayette Circuit Court.
Charles W. Anderson, Jr., C. Eubank Tucker, Prentice Thomas and E.K. Walker for appellant.
Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
Before Chester D. Adams, Judge.
Affirming.
Appellant, Eugene Burnam, a negro, appeals from the judgment of the Fayette Circuit Court wherein he was convicted of the crime of rape and his punishment fixed at death. A former conviction carrying the same penalty was reversed because of prejudicial remarks made by the trial judge to the jury relative to the length of time he might hold them on the consideration of the case. See Burnam v. Com., 283 Ky. 361, 141 S.W. (2d) 282.
Upon this appeal Burnam relies upon four alleged errors for reversal: 1. The court did not instruct on the whole law of the case; 2. during the trial one juror separated from the members of that body and conversed with his wife; 3. the trial jury was improperly chosen; 4. his confession should not have been admitted in evidence.
The court instructed on rape, detaining a woman against her will for the purpose of having carnal knowledge with her, and assault and battery. Appellant criticizes the instruction on assault and battery, also he contends an instruction on attempted rape should have been given. The uncontradicted testimony shows the rape was completed and the defense was an alibi, therefore the evidence does not justify an instruction on assault and battery or on attempted rape. Logsdon v. Com., 215 Ky. 707, 286 S.W. 1067; Bard v. Com., 217 Ky. 479, 290 S.W. 337; Wright v. Com., 267 Ky. 269, 102 S.W. (2d) 14. Moreover, in the recent case of Merriss v. Com., 287 Ky. 58, 151 S.W. (2d) 1030, it was written that where an instruction on detaining was given in a prosecution for rape in violation of Section 1154, Kentucky Statutes, such instruction of necessity covered the crime of attempted rape, therefore an instruction on attempted rape was unnecessary.
During the course of the trial the wife of a juror, Mr. Day, wanted to consult with him concerning the purchase of fruit and vegetables for a grocery which she and her husband operated. While the jury was having a brief recess in the jury room, Mr. Day left the other members of the jury, stepped out in the hall and convesed with his wife three or four minutes. The sheriff, Mr. Thompson, and his deputy, Mr. Hall, were within a foot or two of Mr. and Mrs. Day and testified they heard everything said between them and their conversation related to the purchase of goods for their store. Thompson further testified Day was just outside of the jury room and that another juror, Piatt, was standing in the door leading into the jury room.
Sections 245 and 246 of the Criminal Code of Practice provide that when the jury is kept together in charge of an officer, no person shall be suffered to speak or communicate with the jury or any member thereof touching the subject of the trial. But it has never been held to be reversible error to allow some one to speak to a juror on a subject foreign to the trial in the presence and hearing of the officer or officers in charge of the jury. Canter v. Com., 176 Ky. 360, 195 S.W. 825; Glenday v. Com., 255 Ky. 313, 74 S.W. (2d) 332; Shorter v. Com., 248 Ky. 37, 58 S.W. (2d) 224. Nor was the brief separation of Day from the rest of the jury (if in fact it was a separation as prohibited by Section 244 of the Criminal Code of Practice) prejudicial to appellant's substantial rights as Day was never without the hearing or sight of the sheriff and his deputy. Cox v. Com., 181 Ky. 433, 205 S.W. 385; Caudill v. Com., 217 Ky. 403, 289 S.W. 371; Murphy v. Com., 263 Ky. 347, 92 S.W. (2d) 342.
When it was apparent that the regular panel would be exhausted without the jury being made up, appellant agreed that the court might order a special venire. But his motion that such venire be summoned from names appearing on the last returned tax assessor's book was overruled, and he complains of this. Section 2247, Kentucky Statutes, provides that if in a criminal trial the regular panel is exhausted by challenges, the judge may supply such jurors by drawing from the wheel, or he may direct the sheriff to summon any number of bystanders to fill such vacancies. Sloan v. Com., 211 Ky. 318, 277 S.W. 488; Jennings v. Com., 239 Ky. 629, 40 S.W. (2d) 279; Williams v. Com., 254 Ky. 277, 71 S.W. (2d) 626. We interpret appellant's motion to have the special venire summoned "from the last returned assessor's list" to be equivalent to moving the judge to draw it from the wheel. Under the statute and the authorities just cited he was not required to do this.
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