Wendling v. Commonwealth

• Citation: 137 S.W. 205,143 Ky. 587
• Parties: WENDLING v. COMMONWEALTH. [1]
• Decision Date: 11 May 1911
• Court: Court of Appeals of Kentucky

137 S.W. 205

143 Ky. 587

WENDLING v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

May 11, 1911

Appeal from Circuit Court, Jefferson County, Criminal Division.

Joseph Wendling was convicted of murder, and he appeals. Affirmed unless the confession, not made in open court, was accompanied by other proof, was not prejudicial to accused.

J Reginald Clements and John W. Ray, for appellant.

James Breathitt, Atty. Gen., Tom B. McGregor, Asst. Atty. Gen., J M. Huffaker, Commonwealth Atty., and Loraine Mix, Asst. Commonwealth Atty., for the Commonwealth.

CARROLL J.

The appellant, Wendling, is a native and citizen of the republic of France. He emigrated to this country in 1907, and located in Louisville, Ky. where he was soon afterwards married. In the early part of November, 1909, he obtained employment as janitor at St. John's Catholic Church in Louisville, and his wife was also employed as the housekeeper of the priest in charge of the church. In June, 1910, he was indicted by the grand jury of Jefferson county, charged with the crime of murdering Alma Kellner, a child between eight and nine years of age. Under this indictment he was convicted, and his punishment fixed at confinement in the state prison for life. In the lower court he filed a number of grounds for a new trial, but we will only notice such of them as are relied upon by his counsel in this court in argument and brief, as the other grounds assigned in the motion for a new trial do not seem to be of sufficient importance to justify us in setting them out in the opinion. When the case was called for trial, his counsel in writing moved the court to empanel "a jury de medietate linguæ" to try the prosecution against him, resting his motion upon the ground that appellant as an alien was entitled under the Constitution and laws of this commonwealth to such a jury. The trial judge overruled his motion and put him upon trial before a jury selected in the manner provided in the statute for the trial of criminal cases. The refusal of the court to grant this motion is one of the principal errors assigned, and will be disposed of before considering the other grounds presented for reversal. Section 2254 of the Kentucky Statutes (Russell's St. § 3077), found in the chapter relating to jurors, their mode of selection and qualifications, provides that "juries de medietate linguæ may be directed by the court," and it is this section that counsel relies upon as entitling him as a matter of right to demand such a jury. The right of an alien to demand a jury de medietate linguæ is for the first time presented to this court for its consideration, and an examination of the published opinions of other courts discloses the fact that in very few reported opinions has it ever been considered by a court of last resort in the United States. In North Carolina, in 1825, the question was presented to the Supreme Court of that state in the case of State v. Antonio, reported in 11 N.C. 200,

and the court denied the right of an alien to demand such a jury. In People v. McLean, a case decided by the Supreme Court of New York in 1807 and reported in 2 Johnson's Reports, p. 380, the trial court allowed the prisoner the privilege of a jury de medietate linguæ, and in a brief opinion the court said that it was proper to do so. In the case of Res publica v. Mesca, found in 1 Dallas' Reports, p. 73, 1 L.Ed. 42, a Pennsylvania court of oyer and terminer granted the request of alien prisoners for a jury de medietate linguæ. In Richards v. Commonwealth, decided by the Supreme Court of Virginia in 1841, and reported in 11 Leigh, p. 690, the question of the right of an alien prisoner under a statute like ours to a jury de medietate was elaborately considered, and the court held that the right to order such a jury was within the discretion of the trial court.

A jury de medietate linguæ is one composed half of aliens and half of denizens, and by an ancient act of Parliament an alien might claim as a matter of right both in civil and criminal cases such a jury. 3 Blackstone's Commentaries, p. 361; Bouvier's Law Dictionary, tit. "Jury"; Forsythe's History of the Law of Juries, p. 228. But it is obvious from the scanty mention of juries of this character by the common-law writers as well as the dearth of court opinions that the practice of allowing such a jury had grown into nonuse in England long before the establishment of this government; and the fact that a law so antiquated and obsolete should be found incorporated in the statutes of this state may well be regarded as one of the curiosities of legislation. But the section as it now stands was in the General Statutes adopted in 1873 and the Revised Statutes adopted in 1854, and seems to have been handed down from an act of the Legislature adopted in 1796 that may be found in 1 Littell's Laws, p. 476. It will thus be seen that a law for which there was never any reason in the jurisprudence of the state has been retained from its earliest history in every compilation of the statutes. It stands now and has always stood apart from all other sections of the statute relating to the selection of juries, and has never had any orderly connection with the elaborate system of laws treating of this subject, that have from time to time been enacted. Not only so, but this privilege allowed aliens is, and has always been, contrary to the spirit of American institutions and the public policy of this country. No good reason can be assigned why an alien who takes up his abode with us should not be tried for an offense against our laws in the manner and form provided for the trial of other offenders, or why any privilege or preference should be extended to aliens that is not extended to citizens; and, if the right to such a jury was not recognized by the statute, we would have no hesitation in denying it. But, as the right to this jury is conferred alone by the statute, so by the terms of the statute the correctness of the ruling of the trial court is to be judged as the right to demand a jury de medietate linguæ is not guaranteed either by the Constitution or by the common law as expressed in it. While it is true that in the early history of England a statute for the encouragement of emigration was enacted that gave to aliens the right both in civil and criminal cases to such a jury, the reasons for the adoption of this statute were local in their nature, and it is not to be considered as a part of the body of the common law brought over to this country and that yet prevails in this state.

The common-law right of trial by jury is preserved in the Constitution, but that instrument does not attempt to regulate the manner in which jurors shall be selected or the qualifications they must possess, nor does it describe or designate the character or class of persons who must compose a jury. It merely declares in section 7 that: "The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution." And so, when we wish to ascertain what is meant by the right of trial by jury as expressed in the Constitution, we turn for information to the common law, where the right originated and from whence it came to us. In looking to this source for information, we find it laid down in 3 Blackstone's Commentaries, p. 350 et seq., and in 1 Hale's Pleas of the Crown, p. 33, that the essential features of a trial by a jury were the right of the accused in a criminal or penal case to demand, when put upon his trial in a court of justice presided over by a judge, that he be tried by a jury of 12 men, and that all of them should agree upon the verdict. These were the fundamental principles intended to be, and that have been, preserved inviolate. The qualifications of the juror or the manner or mode of his selection were never regarded as being controlled by this section, which is similar to that found in the Constitution of the United States as well as in the constitutions of the other states of the Union. In Capital Traction Co. v. Hof, 174 U.S 1, 19 S.Ct. 580, 43 L.Ed. 873, Justice Gray in an exhaustive opinion discussing the right of trial by jury said: "'Trial by jury' in the primary and usual sense of the term at the common law and in the American constitutions is not merely a trial by a jury of 12 men before an officer vested with authority to cause them to be summoned and impaneled to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of 12 men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books." In Thompson v. State of Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061, the court had occasion to consider the constituent elements of a common-law jury, and in the course of an elaborate opinion by Justice Harlan it is said: "So in 1 Hale's P. C. 33: 'The law of England hath afforded the best method of trial that is possible, of this and all other matters of fact, namely, by a jury of twelve men all concurring in the same judgment, by the testimony of witnesses viva voce in the presence of the judge and jury, and by the inspection and direction of the judge.' It must consequently be taken that the word 'jury' and the words 'trial by jury' were placed in the Constitution of the United States with...