Smith v. Commonwealth

• Decision Date: 22 March 1899
• Citation: 50 S.W. 241
• Parties: SMITH v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

50 S.W. 241

SMITH v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

March 22, 1899

Appeal from circuit court, Jefferson county, criminal division.

"Not to be officially reported."

Walter Smith was convicted of manslaughter under an indictment for murder, and he appeals. Reversed.

A. J Speckert, for appellant.

W. S Taylor and M. H. Thatcher, for the Commonwealth.

GUFFY J.

The appellant was indicted by the grand jury of Jefferson county for the offense of the willful murder of Louis Prewitt, and tried, convicted, and sentenced to the penitentiary for the period of 21 years, the jury having found him guilty of manslaughter; and, his motion for a new trial having been overruled, he prosecutes this appeal.

The motion for a new trial assigns 22 reasons why a new trial ought to be granted. We deem it unnecessary to recite in detail the various grounds relied on by appellant. The first second, and third grounds are not sustained by the record. The fourth, fifth, and sixth complain of the instructions given or refused. It may be conceded that the instruction on the subject of manslaughter should have stated that, if the defendant had reasonable grounds to believe, and did believe that he was in danger of losing his life, or in danger of receiving great bodily harm from the deceased, the killing would be excusable; otherwise, the instructions given correctly present the law applicable to the case. The instruction asked for by appellant was properly refused. The seventh, eighth, and ninth grounds for a new trial were properly overruled, it not appearing that any error of law occurred in respect thereto.

The eleventh ground reads as follows: "Because the court erred in forcing and compelling defendant, against his objection and exception, to accept the twelve jurors who tried him, and in not permitting defendant to reserve his right to accept the jury of twelve until twelve jurors on the panel had been examined by the commonwealth and the defendant, and in forcing the defendant to excuse jurors before the commonwealth had exhausted its right to excuse jurors." It is the contention of appellant that the court erred in requiring him to accept or reject the individual jurors as they were called, before a panel of 12 were found qualified under the law to sit in the case, and it appears from the bill of exceptions that the court did require the appellant to accept or reject each juror as he was called and found qualified. Section 215 of the Criminal Code of Practice reads as follows: "The challenges to the jury shall first be made by the commonwealth, and then by the defendant, and each party must exhaust his challenge to each juror before the other begins." This court in Shelby v. Com., 91 Ky. 568, 16 S.W. 462, in discussing and construing the foregoing section, said "After the twelve men had been proven competent jurors upon voir dire examination, and before they were sworn to try the issue, the defendant claimed the right to challenge, without cause, two of the jurors, and the court refused to permit this to be done, because, as is stated, defendant had already accepted them, and it was too late for a peremptory challenge. This might have been sanctioned under the former practice, but this court, in construing the provisions of the Criminal Code on this point, has repeatedly held that the...