French v. Commonwealth

• Decision Date: 22 October 1896
• Parties: FRENCH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

37 S.W. 269

100 Ky. 63

FRENCH v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 22, 1896

Appeal from criminal court, Jefferson county.

"To be officially reported."

Ben French was convicted of murder, and appeals. Reversed.

Wilson & Goldsmith, for appellant.

W. S Taylor, for the Commonwealth.

HAZELRIGG J.

While the accused was on trial for murder, and after the final submission of the case to the jury, one of the jurors was allowed, under the verbal assent of the trial judge, and in company with a deputy sheriff, to go to his place of business, some blocks away, in the city of Louisville, for the purpose of closing his house. The other 11 were taken to the hotel, to which place, in some 20 minutes, the deputy and the juror returned, having gone in the meantime to the juror's house, and also to the Pendennis Club. Upon ascertaining these facts, on the following morning, and before the verdict was returned, a motion was made to discharge the jury. It was overruled, and a verdict of guilty returned. Whether this separation is such an error as demands a reversal of the judgment is the sole question presented on this appeal.

Section 244 of the Criminal Code provides that, "on the trial of offenses which are or may be punished capitally, the jurors after they are accepted, shall not be permitted to separate but shall be kept together, in charge of the proper officers. On the trial of other felonies, the jurors, before the case is submitted to them, may be permitted to separate, in the discretion of the court; but after the case is submitted they shall be kept together in charge of an officer. On the trial of misdemeanors, the jury may be permitted to separate at any time until finally discharged, or the court may order them to be kept together." It is seen that on the trial of capital offenses the provision is explicit that the jurors after acceptance, shall not be permitted to separate, but shall be kept together; and the only provision which ever looks towards an exception or modification is found in section 251, Cr. Code, which is as follows: "If, after retirement, one of the jurors becomes so sick as to prevent the continuance of his duty, or other accident or cause occur, preventing them being kept together, or if, after being kept together such a length of time as the court deems proper, they do not agree on a verdict, and it satisfactorily appears that there is no probability that t...