Harris v. Com.
| Decision Date | 24 February 1967 |
| Citation | 411 S.W.2d 924 |
| Parties | Eugene HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Arthur L. Brooks, Jr., Jackson W. White, Clyde L. Stapleton, Lexington, for appellant.
Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
CULLEN, Commissioner.
Eugene Harris appeals from a judgment sentencing him to a term of 18 years in the penitentiary pursuant to a verdict finding him guilty of voluntary manslaughter. Upon a former trial he had been convicted of murder and given a life sentence, but that conviction was reversed by this Court in Harris v. Commonwealth, Ky., 389 S.W.2d 907, for failure to give a voluntary manslaughter instruction.
The Commonwealth's case rested on the testimony of the John Embry that he came out of a restaurant in Lexington and saw Harris and another man (the victim, Frank Johnson) standing at the curb ten feet away; Harris struck the other man in the stomach, and the man put his hand against his stomach and walked away, while Harris walked off in another direction. The victim died 11 days later as the result of peritonitis developing from a stab wound in his stomach.
During Embry's testimony it was brought out that he had not voluntarily gone to the police to tell them of his having witnessed the stabbing; however, it was not brought out by what means the police learned of the fact that Embry was a witness. This aroused the curiosity of one of the jurors and she approached the bench with the question, 'Under what circumstances was Mr. Embry first called in by the police?' Appellant's first claim of error relates to what took place in connection with the asking and answering of this question.
It appears from the record that the one juror, the Commonwealth's attorney, his assistant, and the two defense counsel all were gathered around the judge's bench, and that what was said was not within the hearing of the other members of the jury. The records shows this colloquy:
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