Howard v. Commonwealth

• Citation: 67 S.W. 1003
• Parties: HOWARD v. COMMONWEALTH. [1]
• Decision Date: 01 May 1902
• Court: Court of Appeals of Kentucky

67 S.W. 1003

HOWARD v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

May 1, 1902

Appeal from circuit court, Bell county.

"Not to be officially reported."

George Howard was convicted of voluntary manslaughter under an indictment for murder, and he appeals. Reversed.

Jas. D Black, for appellant.

C.J Pratt, for the Commonwealth.

BURNAM J.

The appellant, George Howard, was indicted for the murder of Daniel Howard, and upon his trial was convicted of the crime of manslaughter, and sentenced to confinement at hard labor in the state penitentiary for a term of four years. He has appealed to this court, and complains, first, that the commonwealth's attorney, in his opening statement of the case to the jury did not state his plea of not guilty, as required by section 219 of the Criminal Code of Practice. It appears from the orders copied into the record that when the case was called for trial both parties announced "Ready," and a jury was impaneled; that the defendant thereupon waived arraignment, and entered a plea of not guilty. But it is insisted that, in addition to this formal plea, it was the duty of the clerk or commonwealth's attorney, after the indictment was read to the jury, to again state the defendant's plea, and that this failure on the part of the commonwealth's attorney is reversible error. To support this contention we are referred to the cases of Galloway v. Com., 4 Ky. Law Rep. 720, and Farris v. Com. (Ky.) 63 S.W. 615. In the Galloway Case it was held that it was essential that the indictment should be read and the plea of the defendant stated to the jury, but it was expressly held that this duty might be performed at any time before the close of the evidence for the prosecution, and that it was immaterial that the indictment was read by an attorney employed to prosecute instead of the clerk or commonwealth's attorney. In the Farris Case the indictment was not read nor the plea of the defendant stated to the jury at all, and the case was reversed for this reason. In the case of Meece v Com., 78 Ky. 586, the record did not disclose that the prisoner was arraigned, or any plea entered in his behalf, and this court was asked for that reason to reverse the judgment. In response to this contention the court said: "The record fails to show that the plea of not guilty was entered, but it is manifest from the entire record that an issue was made, and the accused had a fair and impartial trial." And the court held that it was not reversible error when the question was raised for the first time in this court. In the case of Ison v. Com. (Ky.) 66 S.W. 184, it was held that there could be no reversal for a failure to read the indictment to the jury, unless it had been assigned as one of the grounds for a new trial. No such reason was relied upon in the grounds filed in this case. We are of the opinion that the record sufficiently shows that the statement of defendant's plea was made to the jury, and that under the doctrine announced in both the Meece and Ison Cases no ground for reversal is made out under this plea.

The defendant also complains that the law of his case was not correctly presented by instruction No. 4 given to the jury on motion of the commonwealth. The instruction is as follows "If you believe from the evidence that at the time defendant, George Howard, shot and wounded Daniel Howard, from which shooting and wounding said Daniel Howard soon thereafter died (if you do believe...