Meece v. Commonwealth

• Decision Date: 06 October 1880
• Parties: Meece v. The Commonwealth.
• Court: Kentucky Court of Appeals

78 Ky. 586

1 Ky.L.Rptr. 337

Meece v. The Commonwealth.

Court of Appeals of Kentucky.

October 6, 1880

1. The law of the case, as presented to the jury by the circuit court, was more favorable to the appellant than the facts warranted.

2. The Criminal Code requires that the jury be kept together until a verdict is found, and if they find and report it on Sunday and the court renders the judgment on the Monday following both the verdict and judgment are valid.

3. Although the orders fail to show that a plea of " not guilty" was entered, it is manifest from the entire record that an issue was made, and that the appellant had a fair and impartial trial.

4. The presence of the accused when instructions are given or modified is essential to the ends of justice; but this court will not reverse in case he is not present, unless considering the whole record, it is of the opinion that his substantial rights have been prejudiced thereby.

APPEAL FROM LARUE CIRCUIT COURT.

WILSON & HOBSON FOR APPELLANT.

1. The record does not show that appellant was arraigned, and does not show that he made the plea of not guilty, or any other plea. (Crim. Code, secs. 154, 174; 22 Ill. 372; 84 Ill. 87.)

2. The verdict was rendered by the jury on Sunday, and is void. (Arthur v. Mosby, 2 Bibb, 589; Brown v. McKee, 1 J. J. Mar., 473; Long v. Hughes, 1 Duv., 387; 2 Ib., 438; Crim. Code, 253.)

3. After the case had been submitted to the jury, they returned into court, and asked and received further instructions during all which time appellant was kept in jail, and not permitted to be present in court. (Temple v. Commonwealth, 14 Bush, 770; 5 Caldwell (Tenn.), 11; Phillips' Law Rep., N. C., 3; 43 N. Y, 1; 12 Fla. 562; 20 Ohio 31; 13 Grattan, 763; 13 Fla. 562; 19 Ark. 205; Ib., 214; 24 Ib., 620; Ib., 629; 5 Cal. 72; 23 Ib., 158; 27 Mo. 332; 6 Penn., 384.)

4. The jury was separated after the submission of the case to them and before the verdict. (24 Cal. 337; 22 Ib., 348; 7 N. H., 287; 22 Ill. 375; 44 Ib., 508; 21 La. 321; Commonwealth v. Shields, 2 Bush, 82.)

5. The instructions given to the jury at the instance of appellee are erroneous.

P. W. HARDIN, ATTORNEY GENERAL, FOR APPELLEE.

There is no error in the record to the prejudice of the appellant.

1. That the verdict was rendered and received on Sunday is no ground of reversal. (Watts v. Commonwealth, 5 Bush, 309.) In that case this court held that a party may be arrested for a felony on Sunday, admitted to bail on that day, and a valid bail bond be taken on Sunday. In the case of Commonwealth v. Morrow (3 Penn. Rep.), it is held, the receiving of a verdict on Sunday, being a merely ministerial act, was not void, although done on Sunday. (Crim. Code, sec. 253.)

2. The jury received no evidence out of court. The trial was not commenced or completed in appellant's absence.

3. The instructions are in conformity with the law.

W. H. CHELF FOR APPELLEE.

1. The court below committed no error in instructing the jury or in refusing to instruct at the instance of appellant.

2. That the verdict was rendered on Sunday is no error. It is not to appellant's prejudice, nor does it affect his substantial rights. (Crim. Code, secs. 340, 281, 276, 287; Kennedy v. Commonwealth, 13 Bush, 344.)

OPINION

PRYOR JUDGE:

The appellant, George Meece, having been indicted for the murder of Jack Gardner, was tried and convicted of manslaughter in the Larue circuit court, and sentenced to hard labor in the state prison for twenty-one years. He is is this court asking a reversal of the judgment. Upon the facts of the record it would have been difficult to have given an instruction prejudicial to the substantial rights of the accused. It was a killing without justification or excuse, and the law of the case as presented to the jury was more favorable to the accused than the facts warranted. The first question necessary to be considered is in reference to the action of the court in receiving the verdict on Sunday. After a long and tedious trial, the case was submitted to the jury on Saturday, about twelve o'clock, and on the evening of that day the court was adjourned until the following Monday, and the jury placed in charge of the sheriff. At eleven o'clock on Sunday morning the jury agreed on a verdict, and the judge being informed of the fact, appeared in the court-room, and there received the verdict in the usual manner, in the presence of the prisoner and his counsel, and discharged the jury. No objection was made to this proceeding until the court was about to sentence the accused, which was on Monday following, when for the first time it was objected that the verdict was void, having been rendered on the Sabbath day. The authorities are to the effect that Sunday is not a judicial day; still, many of the reported cases on the subject sustain verdicts rendered on that day in both civil and criminal cases.

Some of the cases proceed on the idea that the delivery of the verdict is a mere ministerial act, while others place it on the ground of necessity, and hold that such proceedings are not void when the judgment on the verdict is entered on a subsequent day other than Sunday. Section 253 of the Criminal Code, with reference to cases submitted to a jury, provides, that " while the jury are absent the court may adjourn from time to time as to other business, but it shall be deemed open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged."

The jury was compelled to consider the case on the Sabbath, or, if not, was in charge of the sheriff, with no power to adjourn or separate until the case was disposed of. When ready to deliver their verdict, it was more consistent with the observance of the Sabbath as a day of rest and for religious worship to permit the jury to go to their homes that they might attend to their religious duties, than to keep them confined in their room for the purpose of deliberating upon and determining the fate of the accused. It was in fact an act of charity toward the jury to discharge them, under the circumstances. In a civil case this court would be inclined to hold otherwise, as there is no law, arising from necessity or otherwise, requiring them to be kept together until a verdict is agreed on or the jury discharged. The accused was present in person and by counsel, and no injustice has been done him by the verdict rendered; and while we are not disposed to sanction any violation of the Sabbath, we are satisfied the verdict in this instance is not void, but authorized a judgment upon it at a subsequent day other than Sunday.

It is no more a violation of the Sabbath to receive the verdict than to keep the jury locked up that they may consider the case.

It is urged by counsel that the record fails to disclose the fact that the prisoner was arraigned, or that any plea was entered in his behalf, and for that reason this court should reverse the judgment of conviction. The record fails to show that the plea of not guilty was entered, but it is manifest from the entire record that an issue was made, and the accused had a fair and an impartial trial. The court was engaged for several days in the trial of the cause; and after numerous witnesses had been...