Disney v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: BENNETT, J.
• Citation: Disney v. Commonwealth, 5 S. W. 360 (Ky. Ct. App. 1887)
• Decision Date: 29 September 1887
• Parties: DISNEY v. COMMONWEALTH.

5 S.W. 360

DISNEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 29, 1887

Appeal from circuit court, Laurel county.

H. C Eversole, for appellant.

P. W Hardin, for appellee.

BENNETT J.

The appellant was indicted in the Laurel circuit court for the murder of George Setters. He was found guilty of the charge and his punishment fixed at confinement in the state penitentiary for life. The trial court overruled his motion for a new trial, and he has appealed to this court. The jurors were selected and sworn to try the issue of guilty or not guilty without the appellant having entered any plea to the indictment, and without the court having called upon him to plead, and without having arraigned him or called upon him to waive the arraignment. While matters stood thus, one witness was examined for the common wealth and cross-examined by the appellant; upon the conclusion of the examination of this witness, the appellant moved the court to discharge the jury, dismiss the case, and discharge him from custody, upon the ground that he had been put upon trial illegally; and that the jury could not be reorganized, and he put upon another trial, because he had once been in jeopardy for the same crime. The court overruled his motion, but offered to discharge the jury with the appellant's consent, which he declined to give; thereupon the court requested him to plead to the indictment, which he declined to do; the court then caused him to be arraigned, and the plea of not guilty entered for him, whereupon the jurors were resworn, and the witness who had been examined was resworn and reexamined, and the case progressed to its conclusion.

The court in a felony case may defer calling on the defendant to plead to the indictment until the jurors are all selected and then the...