Jackson v. Commonwealth

• Decision Date: 18 November 1927
• Citation: 221 Ky. 823
• Parties: Jackson v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

221 Ky. 823

Jackson v. Commonwealth.

Court of Appeals of Kentucky.

Decided November 18, 1927.

1. Jury. — In prosecution under Ky. Stats., section 1166, for maliciously shooting at another without wounding, trial by jury of eleven held denial of defendant's right to jury trial under Constitution, sections 7, 248.

2. Jury. — Constitution, sections 7, 248, guaranteeing ancient mode of trial by jury, held to require jury trial by twelve persons in felony case.

3. Jury. — Constitutional right of defendant, accused of felony, to trial by jury by "the ancient mode of trial by jury," under Constitution, section 7, cannot be waived.

4. Criminal Law. — In prosecution for maliciously shooting at another without wounding under Ky. Stats., section 1166, in which trial was had with jury of only eleven persons, right of defendant to claim denial of jury trial under Constitution, section 7, held not waived by defendant's failure to object to jury, or to rely on insufficiency of jury on motion for new trial, or to present question in bill of exceptions.

5. Criminal Law. — Where record designated, in order selecting jury, not only names of jurors, but number of persons composing jury, it was not necessary for defendant to state, in bill of exceptions, that trial was had with eleven jurors, in order to present question of number of jurors for review.

Appeal from Bell Circuit Court.

E.N. INGRAM for appellant.

F.E. DAUGHERTY, Attorney General, and G.D. LITSEY, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

The appellant, Jesse Jackson, was indicted by the grand jury of Bell county, charged with the offense of maliciously shooting at another without wounding him, as is denounced by section 1166 of our present Statutes. At his trial in the same court, he was convicted and punished by confinement in the penitentiary for a term of two years. His motion for a new trial was overruled, and, from the judgment pronounced on the verdict, he prosecutes this appeal.

A number of grounds are relied on in the motion for a new trial, some of which are argued in the brief of defendant's counsel, but none of them are sufficiently material to require consideration by us, except one, which is: That the convicting jury consisted of only eleven persons, and therefore was not a constitutional jury for the trial of felony charges.

Section 7 of our Constitution says:

"The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution."

The only other reference in the Constitution to the subject of juries is contained in its section 248, which, in substance, prescribes that a grand jury shall consist of twelve persons, nine of whom concurring may find an indictment, and that in civil and misdemeanor cases in inferior courts to the circuit court a jury shall consist of six persons, and that the General Assembly may provide for a majority verdict in circuit courts in the trial of civil actions. Nothing is contained in the latter section modifying the mandatory requirement contained in section 7 as to the sacredness of the "ancient mode of trial by jury" or as to the inviolate right of defendant to such a trial.

The character or kind of jury that was contemplated in section 7, supra, of the Constitution, universally has been held to be a jury composed of twelve persons and that a greater or less number than twelve did not constitute a jury within the contemplation of that section. The text on the subject in 16 R.C.L. 221, par. 37, says:

"The essentials of a jury at common law are that it should be composed of twelve men, that they should be impartial, and that their verdict should be unanimous. In the common law sense a less or greater number than twelve is not a jury; and diminishing the number of jurors impairs the right of trial by jury, and the findings of any other number than twelve cannot be considered as the verdict of a jury, on which the court would be warranted in pronouncing judgment. Following the well-established rule, no legal verdict can be rendered in a criminal cause by a jury composed of more than twelve men. . . . Furthermore, the record in a felony case must show that the verdict was rendered by a jury of twelve, and the court will look into the record, and, if error appears in this respect, will reverse the judgment.. . . A jury of twelve men being the only legally constituted tribunal for the trial of an indictment for a felony, it necessarily follows that the court or judge is not such tribunal, and that, in the absence of a jury, he has by law no jurisdiction."

A long list of cases in notes to that text confirms the firmly established doctrine contained therein, and in a number of cases from this court, two of which are Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205, and Branham v. Commonwealth, 209 Ky. 734, 273 S.W. 489, the definitions of the text as applicable to felony trials were approved. See also, the text in 35 C.J., p. 200, par. 107.

In the Wendling opinion, after referring to standard text-writers on the subject and opinions of courts, we thus expressed our conclusions on that point:

"We therefore conclude that when a person is put upon his trial in a court presided over by a judge who directs the proceedings and before a jury composed of twelve men, and they all agree upon the verdict, the accused has had a trial by a jury according to the ancient mode, and cannot complain that any constitutional right has been denied him merely because the qualifications of the jurors or the manner...