Deaton v. Commonwealth

• Decision Date: 06 February 1914
• Citation: 157 Ky. 308
• Parties: Deaton v. Commonwealth.
• Court: Kentucky Court of Appeals

157 Ky. 308

Deaton v. Commonwealth.

Court of Appeals of Kentucky.

Decided February 6, 1914.

Appeal from Clark Circuit Court.

J. SMITH HAYS, J. SMITH HAYS, Jr., W. A. YOUNG and G. F. WYCOFF for appellant.

JAMES GARNETT, Attorney General, CHARLES H. MORRIS, Assistant Attorney General, and A. F. BYRD for appellee.

OPINION OF THE COURT BY JUDGE MILLER — Affirming.

While in his store on Long's Creek, a tributary of the Middle Fork of the Kentucky River, and about 20 miles from the town of Jackson, in Breathitt County, Ed Callahan was, on May 4, 1912, shot and killed by persons concealed on a wooded hillside in front of his store building, and 156 yards therefrom.

The appellant, D. F. Deaton, commonly called "Fletch" Deaton, and Dan Deaton, James Deaton, Dock Smith, Elisha Smith, Asberry McIntosh, Andrew Johnson Abe Johnson, Billy Johnson, (Abe's son) Willie Johnson (John's son), Govan Smith, Robert Deaton, (Tom's son), Bill Deaton, John Clear and Tom Deaton (Bill's son), were jointly indicted for the murder. The indictment charged the defendants as principals and as conspirators.

On motion of the Commonwealth the venue was changed from Breathitt County to Clark County, where separate trials were had.

In January, 1913, the appellant, "Fletch" Deaton was tried in the Clark Circuit Court, the trial resulting, however, in a hung jury. At the same term of the court, Andrew Johnson and Dock Smith were tried, and the jury in each case failed to agree. Upon a second trial in August, 1913, the appellant "Fletch" Deaton was found guilty and given a life sentence in the penitentiary. He appeals.

1. Appellant's first ground for a reversal is, that the jury was improperly selected. After the mistrials of Andrew Johnson, Dock Smith, and the appellant in January, 1913, the circuit judge, being satisfied from the experience of those trials that it would be impracticable, if not impossible, to obtain a jury in Clark County that would be free from bias, ordered the deputy sheriff of Clark County to summon a special venire of ninety legally qualified jurors from the adjoining county of Madison, for the second trial of appellant. This, the circuit court had the right to do. Hargis v. Commonwealth, 135 Ky., 578; Daniel v. Commonwealth, 154 Ky., 605.

It appears, however, that while the presiding judge was holding the May Term 1913 of the Madison Circuit Court he learned from the deputy clerk of that court that the jury list drawn from the jury wheel for grand and petit jury service in Madison County in February, 1913, containing sixty names, and the list of the same number drawn from the wheel for jury service in May, 1913, in that court, had been preserved; and, upon their being produced by the deputy clerk, the whole of the May list and thirty names from the February list, making a total of ninety names, were copied and left with the deputy clerk, who was instructed to deliver said list to the sheriff of Clark County when he should come to Madison County to summon jurors for the second trial of appellant. When the deputy sheriff went to Madison County pursuant to the order above referred to to summon the extra venireman, he was verbally instructed by the circuit judge to call upon the deputy circuit court clerk of Madison County and get the list of ninety names above referred to, and to summon the persons therein named for service in the trial of appellant. The deputy sheriff followed the judge's instruction, and summoned the ninety men named in the list; and from this number the jury was selected for the trial of appellant. It is insisted that this method of selecting a jury is wholly unknown to the law, was improper, and highly prejudicial to appellant's rights.

There is no statute directing the summoning officer how he shall discharge his duty in selecting jurors from another county. The common law rule is laid down in 24 Cyc., 208, as follows:

"At Common law there was no prior selection of a jury list by persons other than the summoning officer, but the sheriff or other officer selected as he summoned. The practice led to many abuses, and has now to a considerable extent been modified by statute in England, and practically done away with in this country."

The common law method of leaving it to the sheriff to secure the jury has been changed in this State by statute, providing the method of selecting jurors through jury commissioners, leaving it to the sheriff merely to summon those selected by the jury commissioners. As there is no statute, however, covering the case where the sheriff is directed to summon extra talesmen from an adjoining county, the common law method of selecting the jury necessarily becomes operative.

Appellant's motion to quash the panel, and also to discharge the jury before it had been sworn, were overruled, and the trial proceeded before a jury selected from the talesmen summoned from Madison County in the manner above indicated.

It is insisted, however, by the Commonwealth that this action of the circuit judge on motions to discharge the jury or to discharge the panel, are not reviewable by this court.

Section 281 of the Criminal Code of Practice, reads as follows:

"The decisions of the court upon challenges to the panel, and for cause; or upon motions to set aside an indictment, shall not be subject to exception."

Under this section as it now stands, and as it formerly read before it was amended in 1910, this court has held in a long line of decisions, beginning with Adwell v. Commonwealth, 17 B. M., 316, decided in 1856, and ending with Daniel v. Commonwealth, 154 Ky., 605, decided in 1913, that the decisions of the circuit court upon challenges to the panel and for cause, or upon motion to set aside an indictment, are not subject to exception and are not reviewable by this court.

In Daniel v. Commonwealth, 154 Ky., 606, one of the grounds relied on for a reversal was the act of the circuit judge in summoning a jury from an adjoining county; and in holding that this court had no power to review that action of the trial judge, under section 281 of the Criminal Code as it now stands, this court said:

"But, it is insisted that by the act of the Legislature, approved March 23, 1910 (Acts 1910, Chap. 92), section 281 of the Criminal Code, was so amended as to authorize this court to consider and pass upon the correctness of the court's ruling in impaneling a jury. Section 281, as amended by the act of 1910, provides: `The decisions of the court upon challenges to the panel and for cause, or upon motion to set aside an indictment, shall not be subject to exception.' Prior to the adoption of this amendment, this court was without authority to pass upon the correctness of the court's ruling upon a motion for a new trial. By this amendment, the words `and upon motions for a new trial' were stricken from section 281, thereby giving to this court power to review the action of the trial court in passing upon a motion for a new trial. There remained, however, the inhibition against the right of this court to review the action of the trial court in the formation of the jury."

This authority is conclusive of the question before us: and while the action of the trial judge in selecting the jurymen himself instead of leaving it to the sheriff, was not proper, it is not reviewable.

While in some cases the court has, perhaps, expressed an opinion upon questions not really reviewable, it was not done, however, for the purpose of reversing the ruling of the circuit court on those questions confided solely to that tribunal, but in order that there might, thereafter be a uniform administration of the criminal law by the several circuit courts.

We are glad to note, however, that there is no complaint that the jury which tried appellant was not a lawful jury, or that any man that sat thereon was not qualified to sit in the case, under the strictest interpretation of the statute; and we are satisfied from a consideration of the record that appellant has not, in fact, been prejudiced in the selection of the jury which tried him.

2. Next, it is contended that in overruling appellant's motion to quash the panel the circuit court denied appellant the equal protection of the laws guaranteed him by the 14th Amendment to the Federal Constitution, in that he has been tried and convicted by a jury selected arbitrarily; and that if it be claimed by the Commonwealth that section 281 of the Criminal Code of Practice, supra, was intended to bind appellant, then that section is in violation of that other clause of the 14th Amendment, which provides that no State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States. We fail to see the force of the argument, as applicable to this case. Appellant has not been deprived of his right of trial by jury. The manner of selecting the jury in state prosecutions is left entirely with the states. Moreover, the jury in this case was selected after the manner of the common law, and if the state is willing to leave the determination of that question with its circuit court, it may do so without any infringement of the 14th Amendment.

Section 281 prescribes a general rule of practice applicable to all persons; it satisfies the constitutional maxim of furnishing a common rule for rich and poor, for the favorite at court, and the countryman at plow. It did not take from appellant any right which is guaranteed to any other person similarly situated, either by its terms or by its administration. Furthermore, the right to review by appeal the decisions of a trial court is not a fundamental right which a defendant in a criminal case can always claim; on the contrary, it is a matter of grace, to be granted by the state in its discretion.

Prior to 1841, this court had no jurisdiction to reverse the decisions of circuit courts in prosecutions for misdemeanors except in cases where a fine was the only punishment, and then only...