Burnam v. Commonwealth

• Decision Date: 31 October 1941
• Citation: Burnam v. Commonwealth, 289 Ky. 312, 158 S.W.2d 131 (Ky. Ct. App. 1941)
• Parties: BURNAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

158 S.W.2d 131

289 Ky. 312

BURNAM v. COMMONWEALTH.

Court of Appeals of Kentucky

October 31, 1941

Rehearing Denied Feb. 20, 1942.

Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.

Eugene Burnam was convicted of rape, and he appeals.Affirmed.

Charles W. Anderson, Jr., C. Eubank Tucker, Prentice Thomas, and E K. Walker, all of Louisville, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

SIMS Commissioner.

AppellantEugene 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.SeeBurnam 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 § 1154, Ky.Stats., 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 conversed 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 245and246 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 § 244 of the Cr. Code Prac.) 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, Ky.Stats., 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.

It is argued in appellant's brief that out of eighty-eight special veniremen summoned only four were negroes, which fact shows negroes were excluded from the jury trying him.The motion and grounds for a new trial was incorporated in the bill of exceptions, but neither the motion nor the bill contain any reference to negroes being excluded from the jury, hence we are not at liberty to consider this complaint of appellant.McGeorge v. Com.,234 Ky. 189, 27 S.W.2d 967;Dorroh v. Com.,236 Ky. 68, 32 S.W.2d 550;Swango v. Com.,276 Ky. 467, 124 S.W.2d 768.Reference is made to Richardson v. Com.,284 Ky. 319, 144 S.W.2d 492, wherein we discussed the procedure to follow in raising the question of excluding negroes from jury service.We might say in passing that if this question had been properly raised in this instance, there is nothing in the record to show negroes were excluded from the jury as was done in Smith v. Texas,311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84, where the record showed a planned method or scheme by which negroes were excluded from jury service.

Appellant insists that the written confession he made of his guilt should not have been introduced on his trial as it was...