Franklin v. Commonwealth

• Decision Date: 10 January 1899
• Citation: 105 Ky. 237
• Parties: Franklin v. Commonwealth.
• Court: Kentucky Court of Appeals

105 Ky. 237

Franklin v. Commonwealth.

Court of Appeals of Kentucky.

January 10, 1899.

APPEAL FROM MARSHALL CIRCUIT COURT.

COPYRIGHT MATERIAL OMITTED

REED, GREER & OLIVER, FOR APPELLANT.

W. S. TAYLOR, ATTORNEY-GENERAL, FOR APPELLEE. (Brief not in the record.)

JUDGE HOBSON DELIVERED THE OPINION OF THE COURT.

The appellant, Noah Franklin, appeals to this court from a judgment of the court below sentencing him to the penitentiary for life, on the charge of murdering Daisy Sullivan. Several errors are relied on for reversal.

The county attorney went into the grand jury room, and assisted in the examination of the witnesses. Appellant moved on this ground to quash the indictment. The court overruled the motion, and in this, we think, there was no error. The county attorney is, under our statute, in effect an assistant of the Commonwealth attorney, and may properly assist him in the court room or elsewhere, as he may direct. Besides, under section 281 of the Criminal Code, the decisions of the court upon motions to set aside an indictment are not subject to exception, and so the decision of the court below was final on this point.

It appears from the record that the grand jury reduced to writing the testimony of the witnesses before it, and furnished to the Commonwealth attorney the evidence so taken. The appellant moved the court to require the production of this paper on the trial. The motion was overruled, and complaint is now made of this also. By section 112 of the Criminal Code, the proceedings of the grand jury are required to be kept secret. By section 113, a member of the grand jury may be required by the court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining its consistency with the testimony of the witness given on the trial, or in a proceeding against a witness for perjury or false swearing. We do not think the motion in this case fell within any of the exceptions named in the statute. It was the duty of the foreman of the grand jury also, under the statute, to communicate to the attorney for the Commonwealth, when requested, the substance of the testimony before them; but we do not think that the court below should, in the exercise of sound discretion, have required the Commonwealth attorney to communicate to the defendant the evidence so reported to him by the foreman of the grand jury.

The trial of the case was begun on September 28, 1897, in the Marshall circuit court. That term of the court terminated on Saturday, October 16, 1897, and court began in McCracken county on the following Monday, October 18th, in the same circuit. The evidence was heard, and the argument of counsel completed, and the case finally submitted to the jury, some time during the day of October 16th; and, when midnight arrived, the jury returned into court, and stated that they had not yet agreed upon a verdict. The appellant then moved the court to discharge the jury and adjourn court, because the term of court had expired, and the court had no power legally to hold the jury together longer, or to hold court longer; but the court overruled the motion, and made an order extending the term so as to include Sunday, October 17th, in order that the jury might further consider the case, and arrive at a verdict, to all of which the defendant objected, and, his objection being overruled, he excepted. On the next day (Sunday) the jury reported that they had agreed, and returned into court their verdict, finding the defendant guilty as charged, and fixing his punishment at confinement in the penitentiary for life. The defendant objected to the verdict being received, and moved the court to set it aside which the court refused to do, but entered no judgment on the verdict, and adjourned until court in course, after making an order allowing defendant until next term to file his grounds for new trial, and tender a bill of exceptions. Appellant earnestly insists that the power of court expired at midnight on the last day of the term, and that it had no authority to keep the jury together or receive the verdict on the following Sunday.

It is well settled in this state that, in a criminal case like this, the court may receive the verdict on Sunday. Meece v. Com., 78 Ky. 586; Bales v. Com., 11 Ky., L. R., 297, . Counsel distinguishes this case from both of the cases decided. In Meece's case the term of court continued the next week, and the Sunday on which the verdict was returned intervened between two weeks of the regular term; but here the regular term ended on Saturday night, and another term in the same circuit began on the following Monday. In Bales' Case the trial was had at a special term called for the week preceding the regular term in the same county; and, the jury not having returned a verdict on Saturday night at the end of the special term, the court held them together on Sunday, and, having received their verdict on that day, proceeded on the next day to enter judgment upon it. In that case the Sunday upon which the verdict was returned intervened between the special term and the regular term, and the court had jurisdiction of the case at both terms; but here another term in the same circuit began on the following Monday. The circuit judge was authorized to extend his term if it did not interfere with any other term in his district, Ky. Stat. Sec. 964. The extension of the term in this case to include Sunday, October 17th, did not interfere with any other term in the district; and, if the circuit judge may lawfully receive a verdict on a Sunday intervening between two weeks of his term, we see no reason why he may not extend his term, to include Sunday following the expiration of his term, so as to enable the jury to arrive at a verdict. The trial of this case had consumed something like three weeks. The jury had only a short time to consider the great mass of testimony submitted to them; and we do not think that the court below abused a sound discretion in extending the term so as to give them an opportunity to arrive at a verdict.

The other grounds of reversal relied on relate to the action of the court in receiving and rejecting evidence over objection of appellant. For a clear understanding of them, it will be necessary for us to state briefly the facts of the case. The deceased, Daisy Sullivan, was a young woman, about seventeen years of age, and about to become a mother. There was proof tending to show that the appellant was the author of her ruin. There was no direct evidence connecting him with her murder, the proof relied upon by the Commonwealth being wholly circumstantial, and rather vague. It appeared that she lived with her father and mother in a double log house, having a hallway between; that, between eight and nine o'clock on the night she was killed, she was sent...