Roberts v. Commonwealth

• Decision Date: 04 December 1890
• Citation: 90 Ky. 654,14 S.W. 832
• Parties: ROBERTS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

14 S.W. 832

90 Ky. 654

ROBERTS v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 4, 1890

Appeal from circuit court, Fayette county.

"To be officially reported."

Nelms Bros., Basil W. Duke, and Z. Gibbons, for appellant.

P. W Hardin, for the Commonwealth.

PRYOR J.

The appellant, Roberts, was indicted in the Fayette circuit court for the murder of John McCarty. The jury brought in a verdict of manslaughter, fixing his punishment by confinement in the penitentiary for four years. There is only one question in the case necessary to be considered. After the evidence had closed for the state and the defense, the court, through inadvertence, instructed the jury that, if the accused was guilty of manslaughter, his punishment was confinement in the state-prison for a period of not less than 10 nor more than 21 years. The jury under this instruction, after fully considering the case, returned into court with a verdict fixing the punishment at 10 years' confinement in prison. The verdict had been announced, and the jury was being polled, when it was suggested that the instruction given was erroneous, because it fixed the minimum punishment at 10 instead of 2 years. The court then gave another instruction or modified the one given, and required the jury to return to the jury-room that they might further consider the case. A verdict had been returned, correct in form and substance, by 12 men, whose minds had concurred as to the punishment to be inflicted, and, while a lesser punishment was imposed by the last finding, we know of no rule of law or precedent particularly in a criminal case that will authorize a correction of an erroneous instruction after the verdict has been announced. If this can be done, the jury might have made the punishment when considering the case for the second time at 15 years instead of 4, and in this way the accused subjected to two findings as to the punishment. It has been urged that no injustice has been done the accused, but, on the contrary, the punishment having been lessened, he was in fact benefited by the error committed. We think this court ought not to inquire as to the effect of the second finding as such a practice cannot be sanctioned when the life or liberty of the citizen is involved. The action of the court may also have been prejudicial to the rights of the accused. The jury as the record shows, had deliberated on the issue many hours before returning...