Commonwealth v. Shields

• Decision Date: 20 June 1867
• Citation: 65 Ky. 81
• Parties: Commonwealth v. Shields.
• Court: Kentucky Court of Appeals

65 Ky. 81

Commonwealth v. Shields.

Court of Appeals of Kentucky.

June 20, 1867

1.A failure to administer to the officers having charge of the jury the oath, as required by section 242 Criminal Code, will be a good ground for setting aside the verdict, and granting a new trial.But after being once sworn as required, it will not be necessary to administer the oath again at each adjournment or recess of the court.

2.A substantial performance of the officer's duty requires the jury to be so kept as in fact to be present with each other, whether in the same or adjoining apartments, so situated as to admit of free and unrestricted communication between them; and the officer himself to remain in such convenient situation as to observe and prevent any attempt to tamper with the jury, or any irregularity on their part; but it is not absolutely required that the entire jury shall be kept within the same room, without regard to comfort or practical convenience, or that the officer shall lodge within the same apartment with them.

3.In a prosecution for felony a strict observance should be enforced of the rules, so necessary to an impartial trial, which rules are provided for the purpose of preventing the use of improper influences with the jury, either for or against the accused.And in view of the dangerous consequences of tampering and collusion with juries, and the difficulty of detecting and proving acts so important to the safety of the guilty agents themselves to be concealed, where the proof of the separation of the jury or of exposure to improper influences is had, it is for the Commonwealth to show that no undue influences were used, and if it fails, the verdict must be set aside.

APPEAL FROM OHIO CIRCUIT COURT.

JOHN M HARLAN, Attorney General, For Appellant,

CITED--

Crim. Code, sec. 328;also 242 to 245.

OPINION

HARDIN JUDGE.

Pleasant W. Shields was indicted, tried, and convicted, in the Ohio circuit court, of the murder of Henry A. Hocker, and the court having granted him a new trial on grounds mainly involving irregularity in or relating to the sheriff and jury, this appeal is prosecuted by the Commonwealth, upon the suggestion of the Attorney General, that it is important to the correct and uniform administration of the criminal law that this court decide the questions on which the court below acted in granting a new trial.

Three points are presented for our determination by the facts disclosed on the motion for a new trial:

1.Was the failure of the court to administer to the sheriff the oath prescribed by section 242, of the Criminal Code of Practice, a ground for a...