Pennington v. Commonwealth

Decision Date19 September 1958
Citation316 S.W.2d 221
PartiesPearl PENNINGTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtKentucky Court of Appeals

Will C. Hoskins, Hyden, Wm. J. Weaver, London, A. E. Cornett, Hyden, for appellant.

Jo M. Ferguson, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.

STANLEY, Commissioner.

The appeal by Pearl Pennington is from the conviction of voluntary manslaughter with imprisonment of ten years.

For several years there had been trouble between the appellant, his father and his brother on the one side, and the deceased, Clemme Joseph, and some of his family on the other side over use of a passway. A big fight occurred at the home of Jim Mosley, the deceased's brother-in-law, during which twenty or twenty-five shots were exchanged by the participants. Not only Joseph but also an old man who lived with Jim Mosley, an innocent bystander, was killed. The appeal is based upon the sole ground that the appellant was entitled to a new trial because two of the jurors had not disclosed on voir dire examination that they were closely related to Jim Mosley, who was shot and wounded in the affray and who was one of the principal witnesses for the prosecution. He and the deceased had at one time been convicted of obstructing the passway upon prosecution by the Penningtons, and the defendant was under indictment for shooting and wounding the witness.

One of the grounds for a new trial was that John Smith, one of the jurors, was Jim Mosley's first cousin, their mothers being sisters. The supporting affidavits also state that Burley Brock, another juror, was Mosley's second cousin, but Brock's name is not mentioned in the motion. The prospective jurors had been specifically asked on voir dire if any of them were related by blood or marriage to Clemme Joseph, the deceased, or to the prosecuting witnesses, Jim Mosley and Suzanne Mosley, and both Smith and Brock had remained silent. All of the parties lived in the same neighborhood. The relationship was not controverted, nor was the affidavit of the defendant and his attorney that at the time of the trial they did not know that John Smith or Burley Brock was related to Mosley and that if they had known such fact, they would have challenged Smith and Brock as being disqualified or would have exercised peremptory challenges.

The trial court, in an order overruling the motion for a new trial, stated that the panel had been questioned concerning their relationship to Mosley "and the court impressed on the defense counsel that one juror, John Smith, was hard of hearing and the Commonwealth Attorney likewise indicated to the court and the defense counsel that the Commonwealth felt that the juror John Smith was hard of hearing and should be excused, but the defense indicated a desire to retain John Smith on the jury, and it later developed that there was a relationship between the said John Smith and Jim Mosley, whereupon the court swore the juror John Smith and he swore that he did not hear any question concerning the relationship of any prospective juror and Jim Mosley." The court's interrogation of Smith after the trial is not otherwise in the record. The court expressed the opinion that the defendant had waived objection to the juror Smith. The order also recites that "there is nothing in this record to indicate that another juror Burley Brock had any knowledge of his relationship to Jim Mosley, and thus the defendants motion and grounds for a new trial in this action is hereby overruled."

Section 210 of the Criminal Code of Practice authorizes the challenge for cause of any prospective juror for implied bias if he be "related by consanguinity or affinity * * * or be a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted." Where on voir dire examination a prospective juror recognizes his relationship, he should be excused. Williams v. Commonwealth, 254 Ky. 277, 71 S.W.2d 626. While the witness Mosley does not strictly come within the described category, credulity would be stretched to the breaking point to say that the juror's close relationship to Mosley, who had participated in the fight at his home in which he was shot and his brother-in-law was killed, does not practically, or within limits of reality, bring the juror under the classification of being impliedly or presumably biased so as to support a challenge for cause. We do not construe the Code provision as being necessarily confined to a victim for whose death or injury the...

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  • Morgan v. Com., 2003-SC-0489-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • January 19, 2006
    ...kitchen, not the one in D.C.'s bedroom. 2. 864 S.W.2d 252 (Ky.1993). 3. 96 S.W.3d 779 (Ky.2003). 4. 83 S.W.3d 522 (Ky.2002). 5. 316 S.W.2d 221, 224 (Ky.1958). 6. 819 S.W.2d 713, 717-18 (Ky.1991). 7. RCr. 9.40. 8. Id. 9. United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774, 14......
  • Morgan v. Commonwealth, No. 2003-SC-0489-MR (Ky. 5/18/2006), 2003-SC-0489-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • May 18, 2006
    ...kitchen, not the one in D.C's bedroom. 2. 864 S.W.2d 252 (Ky. 1993). 3. 96 S.W.3d 779 (Ky. 2003). 4. 83 S.W.3d 522 (Ky. 2002). 5. 316 S.W.2d 221, 224 (Ky. 1958). 6. 819 S.W.2d 713, 717-18 (Ky. 1991). 7. RCr. 9.40. 8. Id. 9. United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774......
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    • United States
    • United States State Supreme Court — District of Kentucky
    • September 27, 1990
    ...to demonstrate a probability of prejudice. Certainly the relationship here is of much less import than that in Pennington v. Commonwealth, Ky., 316 S.W.2d 221 (1958), where the juror was a first cousin to the prosecution's key witness, or that in Randolph v. Commonwealth, Ky., 716 S.W.2d 25......
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    • United States
    • United States State Supreme Court — District of Kentucky
    • April 22, 2004
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