Roberts v. Commonwealth

• Decision Date: 10 June 1893
• Citation: 22 S.W. 845,94 Ky. 499
• Parties: ROBERTS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

22 S.W. 845

94 Ky. 499

ROBERTS v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 10, 1893

Appeal from circuit court, Breathitt county.

Breck Roberts was convicted of murder, and appeals. Affirmed.

For former appeal, see 20 S.W. 267.

J. J C. Back, R. A. Hurst, J. B. Marcum, and W. W. Vaughn, for appellant.

W. J Hendrick, for the Commonwealth.

HAZELRIGG J.

On a former trial of this case a demurrer to the indictment was filed and overruled. On an appeal to this court the ruling of the lower court in this respect was approved, and the sufficiency of the indictment will not again be considered. The appellant, for the second time convicted of murder, and sentenced to confinement in the penitentiary for life complains on this appeal-First. That he was not granted a continuance. No absent witness could throw any light on the killing with which he was charged, but would testify, it is said in the affidavit, to the unsoundness of defendant's mind. There were other witnesses present who did so testify and the affidavit for the continuance, so far as competent, was read to the jury as evidence. Second. It is urged that the court erred in overruling his challenge to the panel of the jury summoned for that term of court. No record evidence of how the panel was obtained was offered, but the affidavit of the defendant contained the statement that it was not selected by jury commissioners, but by the sheriff and his deputies, all of whom are alleged to be taking an active part in the prosecution of the defendant. This was not the proper way to show irregularity in the formation of the jury, or in the mode of summoning it. There was a record easy of access disclosing the facts. It does not appear when the panel was summoned. It is to be presumed that the sheriff performed this service under the order of court, as provided by section 11, art. 4, c. 62, Gen. St. Moreover, it is distinctly provided by section 281, Crim. Code, and oftentimes so announced by this court, that decisions of the court upon challenges to the panel and for cause shall not be subject to exception.

In this connection we may notice the motion of the defendant to have the jury summoned from an adjoining county. His affidavit discloses that the prosecutors are people of influence, and are using money to secure his conviction. Section 194, Crim. Code, provides that, "if the judge of the court be satisfied, after having made a fair effort, in good faith, for that purpose, that from any cause it will be impracticable to obtain a jury free of bias in the county wherein the prosecution is pending, he shall be authorized to order the sheriff to summon a sufficient number of qualified persons from some adjoining county in which the judge shall believe there is the greatest probability of obtaining impartial jurors, and from those so summoned the jury may be formed." The manner of satisfying himself of this impracticability is by making a fair effort to obtain the jury in the county wherein the case is pending, and certainly the court is not to ignore the plain provisions of the Code, and be controlled and guided by the unsupported affidavit of the defendant.

After the regular panel was exhausted, the court, under section 193, Crim. Code, designated two other persons to summon petit jurors, who were duly sworn. This was objected to by the defendant, but we perceive no error in thus following the provision of the law cited.

An attorney other than the regular attorney for the commonwealth stated to the jury the nature of the charge against the defendant. We see no error...