Jenkins v. Commonwealth

• Decision Date: 11 June 1887
• Citation: 4 S.W. 816
• Parties: JENKINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

4 S.W. 816

JENKINS v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 11, 1887

Appeal from circuit court, Franklin county.

Indictment for murder.

James A. Scott, L. F. Johnson, and P. U Major, for appellant.

The crowning error of all was the refusal by the court below to follow the settled law and practice, as laid down by this court in the Munday and Edrington Case, in the impaneling and selection of the jury. In this case 12 jurors were drawn and sworn to answer questions. The first one questioned was legally qualified to try the case, but before the fact could be ascertained that the others were qualified, the court compelled both the common wealth and the appellant to exercise the peremptory right of challenge saying, at the time, that no other opportunity would be given. It turned out, upon examination, that some of the remaining 11 were disqualified, and ordered to stand aside by the court, so that appellant did not have 12 qualified jurors in the box from which to choose. As fast as the jurors stood aside for cause, the court ordered the clerk to draw the name of others, who took the places of the disqualified jurors, and remained dumb until the examination of those remaining had been proceeded with; the idea of the court being that the Code only required a full box to be presented, without regard to qualifications. This makes a much stronger case for the appellant than the Munday Case. In that case the 12 jurors composing the panel were found, upon examination, to be qualified. The court never required the commonwealth or Munday to exercise the peremptory right of challenge before they had been inquired of touching their qualifications. There the defendant complained of the court's ruling that, if any of the 12 previously found to be compepent were left unchallenged, they would be regarded as accepted. In the opinion of this court, reversing that case, this language is used: "Under the Code, each party is entitled to have a full panel of twelve jurors, found, upon examination, qualified to try the case, before being required to exercise the right of challenge to the individual juror." See Munday v. Com., 81 Ky. 236.

In the Edrington Case the clerk drew the names of 12 jurors, "and each juror was examined touching his qualifications, and as each juror was examined, if he was found to be competent, the parties were required to either accept or challenge him." See Bill of Exceptions, 25, in the case of Edrington v. Com Taylor circuit court, 1885, not reported. In that case this court, in its opinion reversing the judgment of conviction for manslaughter, said: "Instead of requiring the attorney for the commonwealth to pass upon the first juror found upon examination to be qualified, and, if accepted, to require the defendant to pass upon him as seems to have been done in this case, a full panel of 12 jurors, found upon examination qualified to try the case, should have been presented to the commonwealth for its acceptance or challenge, and, if accepted, then the full panel should have been presented to the accused for his acceptance or challenge." "We think the accused had the right to a full panel, upon being called on to accept or reject any one juror, and that the court erred in denying the right, and therefore the judgment must be reversed." The error of the court in Edrington's Case is identical with the error of the court in appellant's case, except that in...