Smith v. Commonwealth

• Decision Date: 11 November 1896
• Parties: Smith v. Commonwealth.
• Court: Kentucky Court of Appeals

100 Ky. 133

Smith v. Commonwealth.

Court of Appeals of Kentucky.

November 11, 1896.

APPEAL FROM RUSSELL CIRCUIT COURT.

J. BRYAN STONE FOR APPELLANT.

J. F. MONTGOMERY ON SAME SIDE.

J. E. HAYS OF COUNSEL ON SAME SIDE.

W. S. TAYLOR FOR APPELLEE.

JUDGE Du RELLE DELIVERED THE OPINION OF THE COURT.

The appellant was indicted for murder and convicted of voluntary manslaughter.

It is urged in his behalf that the trial court permitted each juror to be asked "If he had such conscientious scruples on the subject of capital punishment as would prevent him from finding a verdict of guilty where the punishment was or might be death," and, upon certain jurors replying in the affirmative, excused them from service.

Subsection 7 of section 210 of the Criminal Code provides that a juror may be challenged for implied bias "when the offense is punishable with death, if he entertain such conscientious opinions as would preclude him from finding the defendant guilty."

It is contended that the amendment which permits the jury to fix the penalty for murder at either death or confinement in the penitentiary for life in their discretion renders this subsection a nullity; but we can not concur in this view.

"Punishable with death" means that which may be punished with death — not that which can be punished in no other way. The question appears to be a proper inquiry touching the competency of the jurors. It is further objected that "two jurors who were presented stated that they had opinions in the case, which opinions were based upon the rumors of the country, and had heard no one undertake to relate the facts in the case, and being examined by the defendant's attorneys stated that they had fixed opinions as to the guilt or innocence of the defendant, and that it would require evidence to remove or change said opinion. They were then each asked by the court if they felt that they could give the defendant a fair and impartial trial according to the law and testimony without regard to such opinion, and they answered that they could, and the court thereupon held said jurors to be competent." * * *

This procedure seems to be in reasonably strict compliance with the act of April 10, 1888, amending section 207 of the Criminal Code, which provides "that in the trial of any criminal cause the fact that a person called as a juror has formed an opinion or impression, based upon rumor or upon newspaper statements (about the truth of which he has expressed no opinion), shall not disqualify him to serve as a juror in such case, if he shall, upon oath, state that he believes he can fairly and impartially render a verdict therein in accordance with the law and the evidence, and the court shall be satisfied of the...