Clarence Vinegar v. The Commonwealth
| Decision Date | 11 June 1898 |
| Citation | 104 Ky. 106 |
| Parties | Clarence Vinegar v. The Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM SCOTT CIRCUIT COURT.
L. L. BRISTOW FOR APPELLANT.
W. S. TAYLOR, ATTORNEY-GENERAL, FOR APPELLEE.
The questions presented by this, the second, appeal of this case, are few. It is urged that in a case of murder the time at which the crime is charged to have been committed is material, and must be proved as laid. But the rule was universal at common law that the allegation of time in an indictment was immaterial, except where the time of the commission of the act formed an ingredient of the offense, as in the case of Sunday offenses. Bish. New Cr. Proc. Sec. 399 et seq.
It is further urged that the indictment as it went before the jury upon the second trial was the same indictment which had been presented to the former jury, and had written upon it their verdict, finding appellant guilty, and fixing his punishment at death, and that the action of the former jury thus displayed must have prejudicially influenced the minds of the jury who rendered the last verdict, and was in violation of section 270, Code Cr. Proc., which provides: But while it is true that the verdict of the former jury should not have been displayed to the jurors, and they should not have been permitted to take the indictment with the former verdict indorsed thereon, there is nothing in this record to show either that the jury had the indictment, or that, if they had it, the appellant objected thereto. The indictment as copied in the record shows the first verdict indorsed, and presumably the jury did not have the indictment, or the second verdict would have been also indorsed thereon, which does not appear.
The principal ground urged for reversal is that the jury were permitted to separate. It appears from the affidavits filed upon the motion for new trial that the jury were separated without any order of court, about half the number being taken in charge of a deputy sheriff to their rooms at the hotel, while the remainder went for a walk in charge of another deputy, visited a drug store, where one of them obtained some medicine, and a livery stable, where another juror made some arrangements about his horse. Both officers make affidavit that no communication was had with the jury while they were so separated, or at any time, upon any subject connected with the trial, or upon any subject, without the knowledge of one of the deputies. It further appears that, on the night after the submission, the jury were lodged in four rooms of the hotel, Nos. 40, 42, 43, and 44, which were not connecting rooms; that an unoccupied room (No. 41) was between room 40, in which the deputy was lodged, and room 42, to which some of the jury were assigned; that the room which the deputy occupied was that one furthest away from the entrance to the hotel. The officer makes affidavit that, save himself, no one was in or out of the rooms occupied by the jurors, except upon two occasions, when he accompanied a juror to the water-closet; that no one during the night had any conversation with any of the jury; that there was no opportunity for any juror to have been approached upon any subject; and that frequently during the night he visited the rooms where the jury were lodged.
It is manifest that the officer, in his affidavit, testifies to some things which were beyond his knowledge. He could not know what went on in the rooms while he was absent at the closet, nor could he know what took place in the other rooms when he was asleep in his room. It is manifest, that, admitting to be true all his statements of whose truth he could have knowledge, nevertheless the members of this jury might have been improperly approached twenty times over. This record discloses no ground for even a suspicion that such was the case; but the statute was designed to prevent the possibility of tampering with the jury, and also, as we think, to secure to the accused in a capital case an unbiased consideration of the facts by the whole jury, and to prevent, as far as might be by legislation, a few jurors conferring together, agreeing upon a verdict, and endeavoring to force their conclusion upon the rest of the jury. For the attainment of these purposes, the statute is imperative. It not only requires the jury to be kept together in such cases (Crim. Code, Sec. 244); but in section 245, as if to show the importance attached to this requirement, it is further provided that, "when a jury is kept together in charge of officers, the officers must be sworn to keep the jurors together, and to suffer no person to speak to or communicate with them on any subject connected with the trial, and not to do so themselves." Failure to administer this oath, when properly excepted to, is ground for reversal. Com. v. Shields, 2 Bush, 83. Section 246 provides for the admonition of the jury at each adjournment as to speaking with one another, or permitting any one to speak with them, on any subject connected with the trial. Section 247 requires "a suitable room" to be provided for their use. Section 251 authorizes the court, by order, to permit a juror temporarily sick to be separated from the other jurors. These provisions secure to the accused, as well as to the Commonwealth, a valuable right; and, while we see no reason to believe that any undue influence was attempted to be exerted upon any juror in this case, it is evident that such negligence as that displayed here, where the officers, with the oath to keep the jury together still fresh on their lips, took half the jury for a walk, and the other half to the hotel, will, if indulged by the courts, so impair the right as to render it valueless. As well said by Judge Hazelrigg, in French v. Com., 18 Ky. Law Rep., 576 , speaking of occasions when a separation of the jury was required by accident or other cause of such an imperative character as would be the sickness of a juror: ...
To continue reading
Request your trial