Risner v. Commonwealth

• Decision Date: 10 May 1894
• Citation: 26 S.W. 388,95 Ky. 539
• Parties: RISNER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

26 S.W. 388

95 Ky. 539

RISNER v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 10, 1894

Appeal from circuit court, Magoffin county.

"To be officially reported."

Samuel and Leander Risner were convicted of manslaughter, and Leander appeals. Reversed.

Augustus Arnett, for appellant.

Wm. J Hendrick, for the Commonwealth.

LEWIS J.

Samuel Risner and Leander Risner were jointly indicted for murder and each convicted of manslaughter, though the latter only appeals.

The only ground for reversal that we will consider, or that, in our opinion, is sufficient to authorize reversal, is failure of the lower court to obtain the jury by whom they were tried in the mode prescribed by "An act concerning juries," which was approved May 22, 1893. The transcript in this case is made out so unskillfully that we have had some difficulty in ascertaining precisely when and in what succession the various orders on the subject were made by the lower court, for some of them are not even dated; and, to increase the confusion, the original transcript did not contain all the orders, the omitted portion having been added since it was filed here. It, however, appears that January 29, 1894, being first day of the term of court, the following order was made: "It appearing to the satisfaction of the court that the grand and petit jurors selected and drawn by the jury commissioners appointed at the October term, 1893 of this court, and summoned by the sheriff, as grand and petit jurors for the present term of this court, were not selected and summoned as required by law. It is therefore ordered that all said jurors, grand and petit, be discharged as such for the present term of this court." On the same day (January 29th) an order was made appointing three jury commissioners for the period of one year from that date, who were directed to draw 20 names for grand jurors and 30 names for petit jurors at that term of court; and the commissioners on that day delivered to the judge, in open court, the jury lists under seal for that term, which were then delivered to the sheriff, who was directed to summon the persons named to appear on the third day of the term of court to serve as grand and petit jurors. On fifth day of the term, being February 2, 1894, was made the following order: "All the names in the drum or jury wheel being drawn by the judge of the court, and the jury not being completed, it is ordered that the jury commissioners reconvene for the purpose of selecting other jurors." Following that order is a recital that "said commissioners, after selecting one hundred names and placing them in the jury wheel, returned same into court, and delivered the same to the judge, who drew from said wheel one hundred names, as required by law to serve as jurors at this term, and the clerk is ordered to certify said list to the sheriff, who is directed to summon each and all of said one hundred jurors." In another part of the transcript, however, it is recited that "said commissioners delivered in open court to the judge the drum or wheel case containing the two hundred names and the key, and slips not used. Thereupon the court drew from said drum or wheel case one hundred names, one at a time, and recorded each name upon a sheet of...