Williams v. Commonwealth

• Decision Date: 15 May 1934
• Parties: Williams et al. v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

254 Ky. 277

Williams et al. v. Commonwealth.

Court of Appeals of Kentucky.

Decided May 15, 1934.

1. Indictment and Information. — Motion to quash indictment based on affidavits reciting that accused were informed and believed that grand jury which returned indictment was not drawn from wheel and names announced publicly as required by law held properly overruled (Criminal Code of Practice, sec. 158; Ky. Stats., secs. 2241, 2243).

2. Jury. — Statutory requirement that jury commissioners take names of jurors from last returns of assessor's book required excusing of jurors whose names were proved not to have been so drawn (Ky. Stats., secs. 2241, 2243).

3. Jury. — Where statute requiring panel of petit jury to consist of not less than 24 jurors permitted not more than 3 vacancies in panel to be filled by bystanders, trial court which discharged 2 jurors from panel of 22 was without authority to fill panel from bystanders (Ky. Stats., secs. 2241, 2243, 2247).

4. Jury. — Juror who recognizes his relation should be excused.

5. Jury. — In murder prosecution, challenge to juror who stated he was related to deceased held improperly overruled.

6. Jury. — Where statute requiring panel of petit jurors to contain from 24 to 30 jurors permitted not more than 3 vacancies in panel to be filled by bystanders, party could not be compelled to begin voir dire examination with less than 24 jurors on list of petit jury containing more than three bystanders (Ky. Stats., secs. 2241, 2243, 2247).

7. Criminal Law. — Court of Appeals could reverse for error of trial court in failing to provide statutory jury demanded by accused, where accused made timely objections supported by appropriate evidence and proper exceptions were noted of record (Criminal Code of Practice, sec. 281, as amended by Acts 1932, c. 63, sec. 2; Ky. Stats., secs. 2241, 2243, 2247).

8. Criminal Law. — In criminal prosecution, trial court has duty to instruct jury on all law of case without motion or request.

9. Homicide. — Where evidence in murder prosecution tends to entitle accused to instruction on law as to self-defense or defense of home or both, trial court must give instruction defining law of such defenses.

10. Homicide. — In murder prosecution where evidence for accused tended to show that deceased tried to shoot into accused's home, endangering lives of inmates, and that his death was brought about in defense of accused's home and family, accused was entitled to instructions as to law on defense of home and family.

Appeal from Harlan Circuit Court.

JNO. L. WILLIAMS for appellants.

BAILEY P. WOOTTON, Attorney General, and DAVID C. WALLS, Assistant Attorney General, for appellee

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

Jasper Williams and Paul Williams, father and son, were indicted by the grand jury of the Harlan circuit court, charged with the crime of willful murder committed by shooting and killing Isaac Simpson. On a trial before a jury they were found guilty; Jasper's punishment was fixed at confinement in the State Reformatory for a period of twenty-one years and Paul's for the rest of his natural life. They have appealed from the judgment of conviction and are here insisting the court erred in overruling their motion to quash the indictment and also in refusing to accord them a statutory jury and in the given instructions.

Section 158, Criminal Code of Practice, authorizes an indicted defendant to enter a motion to set aside the indictment for a substantial error in summoning or the formation of the grand jury.

Section 2241 provides:

"The circuit judge of each county shall at the first regular term of circuit court therein, after this act takes effect, and annually thereafter, appoint three intelligent and discreet housekeepers of the county over twenty-one years of age, resident in different portions of the county, and having no action in court requiring the intervention of a jury, as jury commissioners for one year, who shall be sworn in open court, to faithfully discharge their duty. * * * They shall take the last returned assessor's book for the county and from it shall carefully select from the intelligent, sober, discreet and impartial citizens, resident housekeepers in different portions of the county, over twenty-one years of age, the following number of names of such persons,"

according to the population for the ensuing year for jury services. This section sets out in detail the method they must use in selecting the names of the grand and petit jurors for the next term of court,

"and if, in doing this, the name of any person not qualified to act as grand juror is drawn, the same shall be returned to the drum or wheel case. Said names shall be drawn one by one, and only the names of those qualified shall be recorded on paper until the twenty-four are secured; and said list shall be certified, signed and enclosed by them in an envelope made of good paper, and it shall be sealed, and their names written across the seal thereof, and directed to the judge of the circuit court, added the words, `criminal division,' when said circuit court is divided into branches, and endorsed, `A list of the grand jury for the ______ circuit court to be held in the month of ______ in the year ______,' adding the words, `criminal division' after the words, `circuit court,' when there are branches of the circuit court from which list the next grand jury for said county shall be impaneled as hereinafter directed. After completing the list of grand jurors, they shall lock said drum or wheel case and revolve or shake it so as to thoroughly mix the slips remaining therein, and then unlock the same and draw therefrom, one by one, the names of not less than thirty nor more than thirty-six persons, as the judge of the court may direct * * *."

A statutory grand jury is one drawn and impaneled in the manner and as required by sections 2241 and 2243.

A regular panel of petit jury consists of not less than twenty-four nor more than thirty jurors selected from the thirty-six names on the last-returned assessor's book, drawn from the jury wheel as provided by section 2243, Ky. Statutes. Stone v. Saunders, 106 Ky. 904, 51 S.W. 788, 21 Ky. Law Rep. 534.

Section 2247 provides: Bystanders may be selected for grand jury service when the list drawn from the wheel shall have been exhausted as therein permitted, "provided, That if the vacancies to be supplied do not exceed three, the judge may, in his discretion, direct the sheriff to summon bystanders to supply the vacancies." Likewise it authorizes the selection of bystanders for petit jury services "if any of those so drawn and summoned be likewise excused or fail to attend, the judge shall again draw from the drum or wheel case double the number of names to supply their places, and so on until the requisite number is obtained, and if, at any time during the term, it becomes necessary one or more jurors, double the number of names necessary for supplying their places shall be drawn from the drum or wheel case and summoned by the sheriff: Provided, That when the number of vacancies does not exceed three, the judge may direct the sheriff to summon bystanders to supply the vacancies."

With this summary of the provisions of the statutes, we shall proceed to review the actions of the trial court.

Before the prosecution was called for trial, the Williamses entered a motion to set aside and quash the indictment, basing it upon affidavits merely reciting the defendants "are informed, believe and allege the grand jury which returned the indictment against them, was not drawn from the wheel and their names announced publicly as required by law." With no more before the court than this indefinite, speculative statement, the court properly overruled their motion to quash the indictment.

On the calling of the prosecution for trial, they waived formal arraignment and respectively entered a plea of not guilty. And immediately they challenged the array or panel of the petit jury on the ground there were only twenty-two petit jurors on the regular panel, and of these, the names of two were not on the last returned turned assessor's book for the county. The challenge was supported by their own affidavits and the affidavit of Hiram Hensley, the tax commissioner of the county. These affidavits were not denied by counter affidavits or otherwise.

The order of court disposing of their challenge of the panel, and showing their objections to the impaneling of the jury and the actions of the court in respect thereto, reads:

"At the beginning of the selection of the jury, the defendants entered their objection to being forced into trial with only twenty-two jurors of the regular panel in court, from which to select their jury. The court overruled this objection, to which the defendant excepted, and directed the sheriff to summon three bystanders to complete the panel, one of whom excused himself, and the sheriff was directed to summon another, all of whom qualified, and all of whom were examined by the commonwealth and defendants as to qualifications. Whereupon a list was submitted to the commonwealth's attorney and one of the bystanders, Mr. Scott, was peremptorily challenged by the commonwealth and excused. In the meanwhile, twelve other jurors of the regular panel came into court and the selection of the jury was proceeded with from said twelve of the regular panel. During the selection of the jury and at both the times, the court instructed the sheriff to summon bystanders for the jury. The defendants objected to any bystanders being summoned and the court overruled said objection, to which defendants excepted. Thereupon they moved the court to draw extra jurors from the wheel at both times, which motion the court overruled and defendants excepted. Defendants then moved the court at the first time said three bystanders were selected, to wait until twelve men out, were in the courtroom before going on with...