Williams v. Commonwealth

• Citation: 207 S.W. 447,182 Ky. 711
• Parties: WILLIAMS v. COMMONWEALTH.
• Decision Date: 15 January 1919
• Court: Court of Appeals of Kentucky

207 S.W. 447

182 Ky. 711

WILLIAMS v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 15, 1919

Appeal from Circuit Court, McCracken County.

Walter Williams was convicted of larceny, and he appeals. Judgment reversed, with direction to grant new trial.

Crossland & Crossland, of Paducah, for appellant.

Chas H. Morris, Atty. Gen., and Henry F. Turner, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

The appellant, Walter Williams, and one Henrietta Wilson were jointly indicted by the grand jury of McCracken county accused of stealing $50, the property of the prosecuting witness, John O. Wilson, and upon his separate trial he was convicted, his punishment being fixed at confinement in the penitentiary for one year, and from the judgment rendered on that verdict he sought a new trial, which was denied him, hence this appeal. The other defendant, Henrietta Wilson, was first tried and acquitted, and it is claimed on this appeal that the verdict acquitting her was written upon the indictment and taken by the jury which tried appellant to the jury room when considering its verdict in his case.

The only grounds presented by the motion for a new trial which we deem necessary to consider on this appeal are: (1) Alleged error in permitting the jury to take to its room the indictment with the verdict acquitting appellant's codefendant appearing thereon; (2) error in refusing to permit a witness for defendant to answer a material question; (3) that the verdict is flagrantly and palpably against the evidence.

Considering these in the order named: (1) This court has never held that it was reversible error for the jury to take to its room the indictment upon which was written a former verdict, even when the verdict was upon the trial of the complaining defendant, much less if it was rendered upon the trial of a codefendant. Cargill v. Commonwealth, 93 Ky. 578, 20 S.W. 782, 14 Ky. Law Rep. 517; Herrold v. Commonwealth, 8 S. W. 194, 10 Ky. Law Rep. 70; Vinegar v. Commonwealth, 104 Ky. 106, 46 S.W. 510, 20 Ky. Law Rep. 412. In the Herrold Case it was urged before this court, upon appeal from a judgment rendered on the second trial of defendant, that it was error for the jury to take to the jury room the indictment with the verdict of conviction at a former trial of defendant written thereon. But this court in disposing of that objection, after quoting section 278 of the Criminal Code, said:

"And as it is usual and proper for them [the jury] to take the indictment, we do not think the court erred in that respect, although there was written upon the indictment the verdict of the previous jury."

In the Vinegar Case this court went no further than to say, in substance, that it was improper practice to permit the former verdict to be taken by the jury to the jury room, but it was not held therein that for the jury to do so would be a reversible error, and the same is true in the Cargill Case. But, however this may be, in all of the cases it was held that, whatever the character of error it be, the defendant could not take advantage of it upon appeal when there was no objection made at the trial, and where the question was raised for the first time in the motion for a new trial. In the Cargill Case upon this point it is said:

"But the appellant made no objection, and it was his business, as much as that of the other side, to see that the proper papers were taken by the jury, and, if not being done, to call the court's attention to it. By proper vigilance upon his part his right of objection would have been available to him."

The fact that the verdict acquitting appellant's codefendant in this case was not known by appellant's attorney to be written on the indictment at the time the case was submitted to the jury cannot affect the case, since it was the duty of the attorney to know that fact, which could have been discovered by a mere inspection of the indictment upon which his client was being tried. Aside from all this, the transcript filed in this court, which is certified by the clerk to contain the entire record, nowhere shows that any such verdict was indorsed anywhere on the indictment.

In concluding the discussion of this ground it might be said that it would be better practice not to permit former verdicts written upon the indictment to be taken by the jury to the jury room, and if the attention of the court should be called to the fact, it would be his duty to take such steps as might be necessary to prevent it, either by withholding the indictment from the jury, or requiring the former verdict to be obliterated in some manner.

The testimony sought to be elicited by the question which the court declined to permit the witness to answer under the (2) ground of complaint was an incriminating fact concerning the conduct of appellant's codefendant, Henrietta Wilson. We think the fact sought to be proven was material to appellant's defense, but there was no avowal made of what the witness would say if permitted to answer, and the error, although a material one, cannot, under the settled rule of practice in this court, be considered by us.

The (3) ground for a reversal presents a more serious question. The testimony as found in the record is in a very much confused condition, which largely arises from the fact that the witnesses both for the commonwealth and defendant in testifying used the indefinite expression "this man," referring either to defendant, the prosecuting witness, or some other, but to whom the witnesses thus referred we are in several instances unable to determine. From the best we can gather from the record the prosecuting witness went to Paducah from Union City, Tenn., arriving at the former place about 9 o'clock a. m., having made the trip in an...