McLaughlin v. Barr

• Decision Date: 10 May 1921
• Parties: MCLAUGHLIN v. BARR, JAILER.
• Court: Kentucky Court of Appeals

230 S.W. 304

191 Ky. 346

MCLAUGHLIN v. BARR, JAILER.

Court of Appeals of Kentucky.

May 10, 1921

Petition by Adolph McLaughlin for a writ of habeas corpus against James H. Barr, Jailer of Jefferson county. Writ denied, and petition dismissed.

H. M Denton and Hardin H. Herr, both of Louisville, for petitioner.

Loraine Mix and Wm. Thum, both of Louisville, for the commonwealth.

C. B Seymour, of Louisville, amicus curiæ.

HURT C.J.

The petitioner, Adolph McLaughlin, avers that he was indicted in the Jefferson circuit court, and tried in that court for the crime of maliciously shooting and wounding another person with the intent to kill such other, but from such shooting and wounding the other did not die. When tried upon the indictment he was found guilty by the verdict of the jury of the offense of unlawfully shooting and wounding in a sudden affray, without previous malice, and not in his apparently necessary self-defense, and his punishment was fixed at imprisonment in the county jail for a period of one year, and a judgment to that effect was rendered by the court upon the verdict, and under the judgment he was committed to the custody of the jailer by a mittimus to undergo the sentence where he is now confined. He further avers that he is being restrained from his personal liberty, without due process of law, in that he is unlawfully imprisoned, because the jury, which found him to be guilty and fixed a punishment, did not consist of 12 men, but instead consisted of 11 men and 1 woman. He insists that a jury of other than 12 men is in violation of section 7 of the Constitution, which provides, that--

"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."

His prayer is that a writ of habeas corpus be issued in his behalf against the jailer, and that upon a hearing that he be discharged from custody under the judgment. While not expressly averred, it is inferred that the theory of the petitioner is that he was incapable of waiving a trial by jury or of consenting to a trial for felony by a jury other than such a jury as he insists that the Constitution, by sections 7 and 11 of the Bill of Rights, provides that a jury shall be, and that the jury by which he was tried, not being such a one as is required by the sections of the Constitution, supra, to be, was, in effect, not a jury at all, and the court did not have jurisdiction to impose upon him a penalty without the aid of a constitutional jury, and for such reason the judgment rendered against him is void, and his imprisonment under it illegal and without authority of law.

A writ of habeas corpus has never been issued by this court, and, so far as we are advised, this is the first application that has ever been made to it for such method of relief. Under the former Constitutions of this commonwealth this court had appellate jurisdiction only, but it is now insisted that by virtue of that portion of section 110 of the Constitution which provides, "Said court shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions," and section 949, Ky. Stats., it has original jurisdiction to the extent of the power to issue all writs necessary to give it general control of inferior jurisdictions, and that a writ of habeas corpus is thus one of the writs which it has the power to grant, and the power to issue it necessarily has the power attached to hear, determine, and dispose of the issue made by the return thereon. In re Channels, 131 Ky. 737, 100 S.W. 214, 30 Ky. Law Rep. 1248, in which an application was made not for a writ of habeas corpus, but for a writ of certiorari, occasion was taken to say that this court had neither original nor appellant jurisdiction of a writ of habeas corpus, but upon a rehearing of that cause the opinion was modified by striking out of it the declaration of the want of jurisdiction by this court of matters concerning proceedings by habeas corpus. See In re Channels, 131 Ky. 737, 100 S.W. 214, 30 Ky. Law Rep. 1248. The opinion was probably modified upon the ground that the question regarding the original jurisdiction of this court to issue a writ of habeas corpus was not directly involved and that the declaration in regard to it was not necessary to a decision of the question involved in the action.

If it is admitted that this court has the power to grant a writ of habeas corpus, nevertheless the jurisdiction to grant such a writ must be exercised with a judicial discretion upon the facts of the particular case, and after a weighing of their merits. When the facts alleged in the petition are considered, it becomes apparent that before the petitioner has presented a case which would require the granting of the writ, it would be necessary to decide whether, in view of the present provisions of the federal Constitution and the Constitution of this state, and the statutes regulating the qualifications of jurors, a woman, although having the other qualifications prescribed by law for jury service, must be excluded from duty as a juror. If it should be decided that a woman has not legal qualifications for jury service, it would be then necessary to determine whether the judgment under which the petitioner is imprisoned is or is not void because of the presence of a woman upon the jury upon the verdict of which the judgment was rendered, for if not void a writ of habeas corpus will not lie to relieve him from the sentence, as all the authorities hold that the writ cannot be made to do the office of an appeal or writ of error. Williams v. Hert, 157 Ind. 211, 60 N.E. 1067, 87 Am. St. Rep. 203; Lee v. McClelland, 157 Ind.

84, 60 N.E. 692; Ex parte Brandon, 49 Ark. 143, 4 S.W. 452; Ex parte Miller, 82 Cal. 454, 22 P. 1113; In re Walker, 61 Neb. 803, 86 N.W. 510.

Before, however, either of the foregoing questions is reached, it is necessary to decide (1) whether this court has jurisdiction to grant a writ of habeas corpus; and (2), if vested with this power, should it be exercised under the facts stated in the petition. Until these questions are decided, the discussion of the other propositions mentioned would be academic, and would lead us far afield, and in either event their discussion would be unnecessary.

(a) It will be observed that section 110 of the Constitution and section...