Gilbert v. Commonwealth

• Decision Date: 26 September 1924
• Citation: 204 Ky. 505
• Court: Kentucky Court of Appeals
• Parties: Gilbert v. Commonwealth.

204 Ky. 505

Gilbert v. Commonwealth.

Court of Appeals of Kentucky.

Decided September 26, 1924.

Appeal from Harlan Circuit Court.

R. L. POPE, WILLIAM BROCK and F. L. HUFF for appellant.

FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER — Reversing.

Appellant, James Gilbert, was convicted of unlawfully carnally knowing Maude Middleton, a female under the age of sixteen years, and his punishment fixed at confinement in the state penitentiary for a period of ten years. The first indictment for this offense was returned December 2, 1922. He was tried under this indictment on March 31, 1923, and the jury failed to agree. On the 27th of August, 1923, the court made an order wherein it is recited that the indictment against appellant had been lost and the case was again referred to the grand jury. On that day the grand jury returned a second indictment against the appellant for the same offense, reciting in this second indictment the following:

"The defendant, Jas. Gilbert, having heretofore been indicted by the grand jury of Harlan county for the same crime and with the same person, Maude Middleton, and said indictment having been lost, this indictment is made in lieu of the one that was lost and is a continuation of the same prosecution, the case having been re-referred to the grand jury by order of the Harlan circuit court."

On December 4, 1923, the Commonwealth's attorney produced the original indictment and upon his motion the second indictment herein was quashed, and on December 14, the appellant was again tried under the old indictment and again the jury failed to agree. On March 26, 1924, the appellant was tried the third time, and this trial resulted in the judgment appealed from. During the progress of this trial, after the jury had been selected, the attorney for the Commonwealth, by oversight, read to the jury not the original indictment, but the new one, which had been quashed during the previous August term of the Harlan circuit court, and appellant was required to plead thereto and pleaded not guilty. At the beginning of the trial and before any evidence was introduced, the appellant by his counsel, in open court, objected to the introduction of any testimony in this case against him, but did not disclose the reason for his objection. The court overruled his objection and the appellant then excepted. At the conclusion of all the evidence, the Commonwealth's attorney discoverd that the trial was proceeding under the indictment that had been quashed, and he thereupon produced and offered to read the original indictment, to the reading of which the defendant objected. His objection was overruled and he excepted. The original indictment was read to the jury and the appellant was required to plead thereto and he pleaded not guilty. The attorney for the Commonwealth then moved the court to reswear the jury, which the court did over the objection of the appellant, and again he excepted.

As the Commonwealth did not reintroduce its evidence, the appellant moved the court to instruct the jury peremptorily to find and return a verdict of not guilty, because no evidence had been introduced against him after the reading of the indictment on which he was being tried. The court refused to so instruct the jury, appellant excepted, and this is the ground upon which the appellant relies for a reversal. This was not error.

"This court in Galloway v. Commonwealth, 4 Ky. Law Rep. 720, held that the requirement of the Criminal Code that the clerk or the Commonwealth's attorney shall read the indictment and state the plea of the defendant to the jury next in order after they are sworn to try the issue is mandatory, and no party can be legally convicted unless it is substantially complied with. It is also held that where the duty was performed before the close of the evidence for the prosecution, while it was still within the power of the court to recall the witnesses, the substantial rights of the...