Pennington v. Com.
| Decision Date | 26 June 1970 |
| Citation | 455 S.W.2d 530 |
| Parties | Sam PENNINGTON and Juanita Pennington, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Henry E. Hughes, Keller & Hughes, Lexington, for appellants.
John B. Breckinridge, Atty. Gen., Laura Murrell, Asst. Atty. Gen., for appellee.
Sam Pennington and wife, Juanita, appeal from a judgment entered pursuant to a jury verdict finding them guilty of the murder of Oscar Burkhart, a deputy sheriff of Harlan County, and fixing their punishment at life imprisonment. KRS 435.010.
Despite various inconsistencies the evidence pointing to the guilt of both appellants was overwhelming. Nevertheless, it is contended that Sam Pennington was entitled to a directed verdict, so it is necessary to summarize the salient details.
The Penningtons resided on the outskirts of the City of Harlan. At about dusk on November 12, 1968, Juanita received word by telephone to the effect that Burkhart had just arrested their son, Frank (a grown man), and had beaten him up in the process. She and Sam immediately got in their automobile and proceeded into town where, as fate would have it, they came up behind the very car in which Burkhart was taking Frank to jail. Unfortunately for all concerned, Burkhart had to stop at a red light, and the Penningtons stopped immediately behind. Juanita, who was driving, got out of the Pennington car at once and went to the door on the driver's side of Burkhart's automobile, where she fired several shots at Burkhart with a pistol. Meanwhile, Sam approached the Burkhart car on the other side, and there is an abundance of evidence that he too fired one or more shots at Burkhart with a pistol. Not surprisingly, Burkhart was killed. There were at least seven bullet holes in his body, though only one bullet was found still lodged in the body. This was a .45 calibre missile which, according to the examining physician, apparently had entered from the right side, passed through the upper part of Burkhart's chest, and came to rest pointing from his right to left in the large muscle under the left shoulder blade. The wounds on Burkhart's left side appeared to have been made by bullets of a smaller calibre. Witnesses say that the shots fired on the right side of the car sounded louder than those on the left side.
We are scarcely able to comprehend how it can be seriously argued that there was not enough evidence to submit the case against Sam to the jury. Though Sam testified that Burkhart's right-hand door was locked and the window-glass rolled up, and there was no evidence of damage to the glass on that side, other witnesses said they saw him open the door. Certainly we cannot accede to counsel's assertion that the 'testimony that this door was locked and did not open is completely uncontradicted by any evidence offered by the Commonwealth.' As a matter of fact, since some of the witnesses testified that Sam fired through the window on the right side, it was by no means a foregone conclusion that the glass was up.
After 12 prospective jurors had been accepted by both sides but had not been sworn it was discovered that there were two misdemeanor indictments pending against one of them, a Mrs. Melton, who in conformity with RCr 9.66 had been sequestered overnight with the other female jurors. This being a disqualification under KRS 29.025, the trial court, over objection by counsel for the defense, excused Mrs. Melton and proceeded to empanel and qualify another juror. It is the contention of appellants that this was a prejudicial error, but if not, then it was error not to discharge the remaining jurors for the reason that they had been sequestered with a 'stranger' in their midst, contrary to the mandate of RCr 9.66 that the jurors be kept together.
The pertinent language of KRS 29.025(1) reads as follows: 'No person shall be qualified as a juror * * * unless he or she is * * * not under indictment, and, if convicted of a felony, has been pardoned.' It is first argued that the words 'under indictment' as thus used mean indictment for a felony. We find the phraseology and punctuation of the statute too plain to accept that construction. It is next contended that since the two indictments against Mrs. Melton had been 'continued generally' and placed on the 'standby docket' they had been effectually dismissed. We cannot acquiesce in that viewpoint either. It may be that a defendant who insists on a final disposition of his case could successfully attack an indefinite continuance granted over his objection, but there is no doubt that he can consent to it or that there are other circumstances under which such a continuance may be reasonable and valid. There is...
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Penman v. Com., No. 2004-SC-000726-MR.
...cause is within the sound discretion of the trial judge. Caldwell v. Commonwealth, 634 S.W.2d 405, 406 (Ky.1982); Pennington v. Commonwealth, 455 S.W.2d 530, 532 (Ky.1970). Although the Appellant has focused on answers to questions where juror 448 indicated that essentially she hopes she wo......
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Montgomery v. Com.
...cannot render a fair and impartial verdict on the evidence, the juror shall be excused as not qualified. See Pennington v. Commonwealth, Ky., 455 S.W.2d 530 at 532 (1970) where this Court recognized the broad discretion of the trial judge in challenges for cause. Certain language found in J......
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Mabe v. Com.
...whether a prospective juror should be excused for cause (See McQueen v. Commonwealth, Ky., 669 S.W.2d 519 (1984), Pennington v. Commonwealth, Ky., 455 S.W.2d 530 (1970) and Tarrence v. Commonwealth, Ky., 265 S.W.2d 40 (1953)), but if it is later determined that a juror should have been excu......
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Robinson v. Commonwealth, No. 2008-CA-000248-MR (Ky. App. 2/6/2009)
...may comment on defense tactics, theories, and the evidence. Id. He/she may even appeal to the jury's conscience, Pennington v. Commonwealth, 455 S.W.2d 530, 533 (Ky. 1970), and comment on the severity of punishment warranted by the evidence, Woodall v. Commonwealth, 63 S.W.3d 104, 124 (Ky. ......