Johnson v. Commonwealth

• Decision Date: 07 December 1948
• Parties: Johnson v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

308 Ky. 709

Johnson v. Commonwealth.

Court of Appeals of Kentucky.

December 7, 1948.

1. Weapons. — Evidence of carrying concealed a deadly weapon was sufficient to warrant submission of case to jury.

2. Criminal Law. — Where appellant claimed bill of exceptions did not directly set forth facts but bill of exceptions was prepared

by appellant's counsel and submitted to and approved by trial judge, reviewing court could only consider statements in bill of exceptions.

3. Criminal Law. — Where after jury was impaneled, accepted, and sworn one juror stated he had been member of jury on previous trial of case and defendant moved to set aside swearing of jury and to continue case and court sustained first motion and denied second and another juror was sworn, selection of new juror, if error, did not go to question of jeopardy.

4. Criminal Law. — The right of an accused to poll jury may be waived.

5. Criminal Law. — In prosecution for carrying concealed a deadly weapon, it was error to overrule objection of defendant to receiving verdict without poll of jury. Criminal Code of Practice, sec. 267.

Appeal from Floyd Circuit Court.

Francis M. Burke for appellant.

A.E. Funk, Attorney General, and Zeb A. Stewart, Assistant Attorney General, for appellee.

Before Edward P. Hill, Judge.

OPINION OF THE COURT BY JUDGE CAMMACK.

Reversing.

Ed Johnson was sentenced to two years in prison for carrying concealed a deadly weapon. Reversal of the judgment is urged upon the following grounds:

"(1) After the jury had been accepted and sworn, the court, without consulting appellant or securing his consent, dismissed T.Y. Harmon, a member of the jury, and impaneled W.T. Ellis in his place. After Ellis was impaneled, the jury was again sworn and the case proceeded to trial over the objection of the appellant.

"(2) The verdict of the jury was received and read by the court without a poll of the jury, over appellant's objection.

"(3) The trial court erred in overruling appellant's motion for a directed verdict."

The sufficiency of the evidence concerning Johnson's guilt is questioned in the third ground. That Johnson was carrying a .38 pistol is not denied. He and his witnesses testified that he was not wearing a coat, but rather a short, close-fitting sweater, and that the handle of the pistol could be seen protruding from the right pocket of his trousers. Reference is made to testimony of the Commonwealth's witnesses as to how Johnson was dressed and to the position of the parties and also the pocket from which he took the gun. Granting all this, we think there was sufficient substantial evidence of Johnson's guilt to warrant the submission of the case to the jury.

In regard to the first ground the bill of exceptions shows:

"After the Commonwealth's Attorney had read the indictment to the jury and had made a partial statement of the case, T.Y. Harmon, one of the jurors accepted and sworn to try this case, stated that he had been a member of the jury on the trial of this case at a previous term of this court. Thereupon, the defendant moved the court to set aside the swearing of the jury and continue the case, and the court being advised, sustained said motion as to the setting aside the swearing of the jury, but overruled the motion for continuing of the case, to which ruling of the court, the defendant objected and excepted.

"Thereupon, the court directed another juror to be impaneled, and W.T. Ellis was called as such juror, and the Commonwealth accepted W.T. Ellis as a member of the jury, making twelve jurors in all.

"The defendant objected and excepted to this procedure and accepted the jury under protest. Thereupon, the whole jury was again sworn by the court."

It is said that the foregoing quotation from the bill of exceptions does not correctly set forth the facts relating to the juror, Harmon. Obviously, however, we can consider only the statements in the bill of exceptions, since they were prepared by counsel for the appellant and submitted to and approved by the trial judge. The point is made that Johnson was put in jeopardy when the jury was first impaneled, accepted by both parties and sworn to try the case. The cases of O'Brian v. Commonwealth, 9 Bush 333, 72 Ky....