Temple v. Commonwealth

• Decision Date: 10 May 1879
• Citation: 77 Ky. 769
• Parties: Temple v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 769

77 Ky. 769

Temple v. Commonwealth.

Court of Appeals of Kentucky.

May 10, 1879.

APPEAL FROM ALLEN CRIMINAL COURT.

LESLIE & BOTTS FOR APPELLANT.

THOS. E. MOSS, ATTORNEY-GENERAL, FOR APPELLEE.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

The appellant was indicted and tried for the murder of Robert Moore, and found guilty of the crime of manslaughter, and adjudged to be confined in the penitentiary for a period of six years and four months. From that judgment he prosecutes this appeal.

We perceive no objection to the instructions given to the jury by the court. They presented, with more than ordinary brevity and perspicuity, the law of murder, manslaughter, and self-defense, and are free from subtile definitions which too frequently tend to mislead and confuse rather than to enlighten the jury.

The instructions asked by the appellant and refused by the court, as far as they were correct, were embraced in those already given, and it was not only unnecessary but would have been improper to repeat them.

One of the grounds for a new trial was, that the verdict was received in the absence of the appellant and his counsel from the court-room.

It appears from the bill of exceptions that the case was given to the jury about sunset, and the court adjourned for the day. The appellant was placed in jail, and his counsel retired to their rooms in the town. After dark the jury reported to the judge that they had agreed upon a verdict. The judge went to the court-room, and without causing the appellant to be brought in, and in the absence of his counsel, and without notice to them, the verdict was received and the jury discharged.

The Code provides that "While the jury are absent, the court may adjourn from time to time as to other business, but it shall be deemed open for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jury discharged." (Section 253.)

There was therefore no impropriety in receiving the verdict at the time stated.

But whether it was not improper to receive it without notice to appellant's attorneys, and without affording them reasonable opportunity to be present, and especially without the presence of the appellant, is a very different and much more important question.

The bill of rights declares "That in all criminal prosecutions the accused hath a right to be heard by himself and counsel." The right to be heard by himself and counsel necessarily embraces the right to be present himself and to have a reasonable ...