Wynn v. Commonwealth

• Decision Date: 18 June 1920
• Citation: 222 S.W. 955,188 Ky. 557
• Parties: WYNN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

222 S.W. 955

188 Ky. 557

WYNN v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 18, 1920

Appeal from Circuit Court, Henderson County.

Jim Wynn was convicted of voluntary manslaughter, and he appeals. Affirmed.

Cass L Walker, of Providence, and W. P. McClain and F. J. Pentecost both of Henderson, for appellant.

N Powell Taylor, and Marvin D. Eblen, both of Henderson, and Chas. I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen., for the Commonwealth.

QUIN J.

Appellant was indicted for the crime of murder of W. H. Fox, committed June 13, 1918, upon trial was found guilty of voluntary manslaughter, was sentenced to a term of 21 years in the penitentiary, and to reverse that judgment has prosecuted this appeal. The evidence in the case being sufficient to sustain the verdict, it will be unnecessary to enter into a discussion of the events leading up to the crime for which appellant was indicted. We will address ourselves to the points raised by counsel in the brief, but in the inverse order of their presentment.

1. Alleged misconduct of the jury on the night of the first day of the trial. With the usual admonition the sheriff was placed in charge of the jury. He took the 12 men to witness a special attraction at the skating rink in Henderson. A space 60X180 feet had been set aside for the skaters; around the four sides, behind a railing, several rows of benches had been placed for spectators. The musicians were stationed near the center of the rink. The sheriff and members of the jury sat on benches. Harry High, one of the jurors, was a pianist and cornetist; upon request made to him and to the sheriff he was permitted to assist the musicians; he was seated within thirty feet of the place where the sheriff was sitting.

In support of the motion for a new trial, and as grounds for reversal, it is said that at times during the performance people congregated around High and the piano, and in such numbers as to obstruct the view of the sheriff, thus affording designing persons opportunity to communicate with High, but the affidavits filed in support of the motion do not show that any communications affecting or pertaining to the trial were made. On the contrary, the affidavits of the sheriff, High, the remaining 11 jurors, and other persons state that during the whole evening High was in plain view of the sheriff, and that the opportunity to communicate with either High or the other jurors was at no time given, and High himself says that he did not speak to any one about the case, nor was it discussed in his presence at any time that evening. It is well recognized that a jury in a criminal case, in charge of the sheriff, may properly be taken to places of amusement, to restaurants, and the like, and that the temporary withdrawal of a juror from the immediate presence of his fellow jurors or the sheriff will not constitute such separation as will affect the verdict where, as in the present instance, the juror of whom complaint is made was during the whole evening within plain view of the sheriff and the remaining jurors, and at a distance of not exceeding 30 or 40 feet.

We have had occasion to write upon this subject in numerous cases. The opinion nearest in point to the facts of this appeal is probably that of Johnson v. Commonwealth, 179 Ky. 40, 200 S.W. 35. In this case it was charged that the sheriff permitted one of the jurors to converse with a person other than a member of the jury, and two or more of the jury were permitted to enter a drug store and thereby separate themselves from the remaining members. It was not charged that anything improper was said or done by any of the jurors or persons, but there, as here, it was contended that the acts were in violation of the Criminal Code and the decisions of this court holding that although the case was not discussed between the jurors and other persons, and no juror did anything culpable, yet their conduct was improper because an opportunity was presented for the jury to discuss the case with strangers or others if they had been so minded. Affidavits of the sheriff and others were filed showing that the jurors whose conduct was complained of were in the presence of and within view of the sheriff and the other jurors; that the conversation referred to related to a matter having no connection with the case referred to; and the sheriff said the two jurors who went to the drug store were in plain view all the time. The court held it satisfactorily appeared the jurors were kept together, nothing happened that could have prejudiced the appellant, and no opportunity was given for any wrong.

In French v. Commonwealth, 100 Ky. 63, 37 S.W. 269, 18 Ky. Law Rep. 574, relied upon by appellant, the facts were similar to Campbell v. Commonwealth, 162 Ky. 106, 172 S.W. 110, distinguished in the Johnson Case, supra. In the French Case a juror was permitted to go to his place of business some blocks away, and therefore was separated from the remaining jurors and the sheriff--facts entirely dissimilar to those found in the present record.

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