Kennedy v. Commonwealth

• Decision Date: 16 October 1878
• Citation: 77 Ky. 340
• Parties: Kennedy v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 340

77 Ky. 340

Kennedy v. Commonwealth.

Court of Appeals of Kentucky.

October 16, 1878.

APPEAL FROM GARRARD CIRCUIT COURT.

COPYRIGHT MATERIAL OMITTED

R. M. & W. O. BRADLEY, T. P. HILL, W. G. WELCH, AND M. C. SAUFLEY FOR APPELLANT.

THOS. E. MOSS, ATTORNEY-GENERAL, AND C. A. & P. W. HARDIN FOR APPELLEE.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

Having been convicted of the murder of E. D. Kennedy, and adjudged to be confined in the penitentiary for the balance of his natural life, the appellant has appealed to this court for a reversal of that judgment.

Numerous grounds are relied upon for reversal, which we proceed to notice seriatim:

1. For some reason, not disclosed by the record, the jury by which the appellant was tried, was not summoned by the sheriff of the county, but by James N. Denny, who is styled "special sheriff," and his assistants E. W. Harris and W. A. Arnold.

Section 193, Criminal Code, provides that "The court may, for sufficient cause, designate some other officer or person than the sheriff to summon petit jurors, the officer or person designated being first duly sworn in open court to discharge the duty faithfully and impartially."

The record does not contain an order showing that Denny or either of his assistants was designated to summon jurors in the case, but it does contain an entry showing that they "took the oath prescribed by law in regard to summoning jurors in this case" for the term.

No objection was made before verdict on account of the manner in which, or the persons by whom, the jurors were summoned. There is, we think, enough in the record to show that the person named as special sheriff and his assistants were designated by the court to summon the jury, and as the appellant and his counsel must have known by whom the jury was summoned, and by what authority the persons summoning the jury acted, and failed, until after the verdict, to make any objection to the jury on that ground, any irregularity in that respect was waived.

2. Among other grounds for a new trial it was alleged that one of the jurors was an alien, and that another, before being accepted, had formed and expressed the opinion that the appellant was guilty, and that neither the appellant nor his counsel knew of the disqualification of either of said jurors until after verdict.

The court made no decision in regard to these jurors, or either of them, until it came to pass on the motion for a new trial, and any error the court may have committed in its ruling in respect to them was in overruling that motion.

The decision of the court upon a motion for a new trial is not subject to exception. (Sec. 281, Crim. Code; Terrell v. Commonwealth, 13 Bush, 246.)

An exception in a criminal case "shall be shown upon the record, by a bill of exceptions, prepared, settled, and signed, as provided in the Code of Practice in Civil Cases." (Sec. 282, Crim. Code.)

As the appellant had no right to except to the order overruling his motion for a new trial, he had no right to have a bill of exceptions, exhibiting any thing brought into the record for the first time on that motion, and, as he had no right to have such a bill of exceptions, it constitutes no part of the record, and can not be considered by this court; and consequently we can not know that any such error as that complained of was committed.

We have no power to look into a bill of exceptions which the legislature has declared should not be allowed, or into a general bill for matters not the subjects of exception, and then to reverse for an alleged error thus improperly appearing in the transcript.

We must reverse for any error of law appearing in the record to the prejudice of the appellant, but this only applies to such errors as the party had a right to manifest by bill of exceptions; and as a bill of exceptions, not only not authorized, but expressly prohibited by law, is no part of the record, an error in respect to any of the matters which, under section 281, can not be excepted to, is not an error appearing "in the record" within the meaning of section 340.

And, for the same reason, we can not consider the alleged errors in not keeping the jury together, and permitting the attorney for the Commonwealth to go out of the record to make statements concerning the character of the appellant. Had the court been appealed to to stop that course of argument, and refused to interfere, the question might have been different. No such appeal was made, and consequently the court made no decision on the subject until it came to rule on the motion for a new trial, and for error in that we have already seen we have no power to reverse.

3. The Commonwealth introduced evidence to prove that the appellant, while being conducted to jail under an order of the county judge committing him to answer the charge in this case, escaped from the officer and guard and fled, and remained at large until again arrested. The defense offered in rebuttal to prove that the jail to which he was being conducted was in a filthy condition; but upon objection being made by the Commonwealth, the evidence was rejected. "At this juncture," as the bill of exceptions recites, "the court remarked, in the presence and within the hearing of the jury, that the Commonwealth always had a right to show that a man runs because he is afraid of a trial, and the law always held that flight could be used as presumptive evidence of guilt, and the defendant could show that he fled on account of apprehended violence or danger to life."

"To this counsel responded that, if such was the presumption, defendant ought to be permitted to rebut it; and the court responded in the presence and within the hearing of the jury that counsel could put Peacock's testimony in the bill of exceptions." Peacock was the witness by whom it was proposed to prove the condition of the jail.

No exception was taken at the time to the remarks of the court, and if there had been we are not of the opinion that they would furnish ground sufficient to warrant a reversal. Yet, we regard it the safer course for the judge to refrain from giving reasons, in the presence of the jury, for decisions upon questions which may by any possibility prejudice the rights of either party. This is unlike the case of Coppage v. Commonwealth, 3 Bush, 533. What the court said in this case was no more than it had in effect said when evidence of the appellant's escape and flight was allowed to be given to the jury, while the remark made by the judge in Coppage's case "erroneously implied not only that the written statement was evidence of all the facts contained in it, but also that it was the more impressive as proof offered by the accused himself," whereas, in offering the written statement, the accused announced that it was for the sole purpose of contradicting the witness. In that case there was an erroneous and misleading interpretation and application of the evidence, while in this case what the court said in regard to evidence of escape and flight was no more than the jury must already have understood from the action of the court in admitting the evidence. The reference by the court to a bill of exceptions was not calculated to mislead or to impress the jury to the appellant's prejudice. They can not be presumed to have been so familiar with legal terms and the forms of legal proceedings as to have understood, from this casual allusion to a bill of exceptions, that the court expected them to convict the appellant.

Was the rejected testimony of Peacock competent? When flight has been proved as furnishing evidence of guilt, it is competent for the accused to prove other causes which may have influenced him to fly, and leave the jury to decide whether his flight was caused by a consciousness of guilt and apprehension of conviction, or by such other causes as he may prove to have existed. But it would be clear that a mere aversion to lawful imprisonment could not be allowed to be given in evidence for that purpose. One charged with a crime against society can not be allowed to offer his mere fastidiousness of taste to rebut legal evidence of guilt.

Counsel "stated that they could prove by witness that, before and at the time defendant made his escape from the guard, the jail in which he had been confined, and to which he was being taken by the guard, was in such a condition that witness, as one of the guard, while sleeping above stairs immediately above the cell where defendant was confined, on account of the stench that came through the floor and ceiling, was compelled to find other quarters; that such stench and filth were calculated to destroy defendant's health and endanger his life, and kill a hog; that on the first trial of this case the condition of said jail was such that the presiding judge in this case refused to send defendant to same, and had him guarded in the court house."

The statute provides that the county court shall prescribe rules for the government and cleanliness of the jail, and the comfort of the prisoners, and may, by fine, enforce the rules and punish the jailer for disobedience thereto, or for neglect of his official duties; and it also provides that the county judge shall inspect the jail at least once a month. (Secs. 10 and 12, art. 1, chap. 61, Gen. Stat.)

The appellant had just been ordered to jail by the county judge, whose duty it was, and who had ample power to require the jail to be made clean and comfortable; and we must presume that, had his attention been called to the condition of the jail, if in fact it was in the condition appellant offered to prove, he would at once have required it to be cleaned, and freed from the offensive odors said to have existed in it. The appellant thus had in his power the means of relieving himself from the danger which he claims to have apprehended from the condition of the jail; and if it be said that the county judge might have refused to do his duty, it is...