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first duly sworn in open court to discharge the duty faithfully and im-

1. Objection that jurors were summoned by persons not duly authorized to do so must
be made before verdict. 14 Bush, 342-3.

2. The person appointed may, with the consent of the court, appoint an assistant; and
such an appointment should not be set aside on the affidavit of the defendant alone that
the assistant will not act impartially. 86 Ky., 607.

§ 194 [195]. When jurors mcty be summoned from adjoining county.
If the judge of the court be satisfied, after having made a fair effort, in 5 K./5
good faith, for that purpose, that, from any cause, it will be impracti-
cable to obtain a jury free of bias in the county wherein the prosecution
is pending, he shall be authorized to order the sheriff to summon a suf-
ficient number of qualified jurors from some adjoining county in which
the judge shall believe there is the greatest probability of obtaining im-
partial jurors, and from those so summoned the jury may be formed.

§ *95 [*96]- P a y an d mileage of jurors. The jurors so summoned
shall be allowed the same mileage as witnesses, and the same pay as
other jurors while in attendance at the courts.

§ 1 96 [ 1 97] . Sheriff may summon in adjoining county under order. Th e
sheriff shall have the same power of summoning jurors under such order
that he would have in the county of which he is the sheriff, and the
court the same power of coercing the attendance of such jurors that it
would have if they were summoned in the same county.

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Challenging the Jury.

$ 197. Challenge may be — 1. To the panel; 2. To the individual juror.

\ 198. Challenge of one defendant is challenge of all.

\ 199. Ground of challenge to panel.

§ 200. Proceedings if challenge to panel be sustained.

\ 201. Challenge to juror is — 1. Peremptory; 2. For cause.

§ 202. Must be made before juror sworn in chief, unless by leave.

\ 203. Number of peremptory challenges by defendant.

\ 204. Number by Commonwealth.

$ 205. Challenge for cause may be by either party.

J 206. May be general or particular.

§ 207. Grounds of general challenge.

\ 208. Grounds of particular challenge.

§ 209. Actual bias.

J 210. Implied bias.

{ 211. Exemption from service not a ground of challenge.

J 212. Challenge tried by the court.

J 213. Juror may be examined on challenge.

§ 214. Other witnesses may be examined.

§ 215. Commonwealth to challenge first, defendant afterward.

$ 216. Order of challenges.

§ 197 [198]. Challenge maybe — 1. To panel; 2. To individual juror.
A challenge is an objection to the trial jurors and is of two kinds:

1. To the panel.

2. To the individual juror.

§ 198 [199]. Challenge of one defendant is challenge of all. When
several defendants are tried together* the challenge of any one of the
defendants shall be considered the challenge of all.

§ 199 [200]. Ground of challenge to panel. A challenge to the panel
shall only be for a substantial irregularity, in selecting or summoning
the jury, or in drawing the panel by the clerk.

1. Going into trial without challenging the panel is a waiver of the right to do so. 79
Ky., 366.

2. Decisions upon such challenge are not subject to exceptions. \ 281.

§ 200 [201]. Proceedings when cliallenge to panel sustained. If the
challenge be sustained on the ground of irregularity in selecting or sum-
moning the jury, all the standing jurors shall be excluded from the trial
jury, and it shall be composed of persons summoned by the sheriff, or
other officer appointed by the court for that purpose ; if sustained be-
cause of irregularity in drawing the panel, all the names of the stand-
ing jury shall be replaced and another panel drawn.

§ 201 [202]. Challenge to juror is — 1. Peremptory; 2. For cause. The
challenge to the individual juror is either —

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1. Peremptory; or,

2. For cause.

§ 202 [203]. Must be before juror sworn in chief unless by leave. It
must be taken before he is sworn in chief, unless the court, for good
cause, permit it to be made at any time before the jury is completed.

§ 203 [204]. Number of peremptory challenges by defendant The de-
fendant is entitled to [fifteen. {Act of April 10, 1893, S. A., 747)] per-
emptory challenges in prosecutions for felony, and to three in prosecu-
tions for misdemeanor.

§ 204 [205]. Number by Commotrduealth. The Commonwealth shall
be entitled to five peremptory challenges in prosecutions for felony, and
to three in prosecutions for misdemeanor.

§ 205 [206]. Challenge for cause by eitfter party. The challenge for
cause maybe taken either by the Commonwealth or by the defendant.

§ 206 [207]. May be general or particular. It may be general, that
the juror is disqualified from serving in any case, or particular, that he
is disqualified from serving in the case on trial.

§ 207 [208]. Grounds of general challenge. Causes of general chal-
lenge are —

1. A want of the qualifications prescribed in the General Statutes;

2. A conviction for a felony ;

3. Unsoundness of mind, or such defect in the faculties of the mind,
or organs of the body, as render him incapable of properly performing
the duties of a juror.

§ 208 [209]. Grounds of particular challenge. Particular causes of
challenge are actual and implied bias.

§ 209 [210]. Actual bias. Actual bias is the existence of such a
state of mind on the part of the juror, in regard to the case, or to
either party, as satisfies the court, in the exercise of a sound discretion,
that he can not try the case impartially and without prejudice to the
substantial rights of the parties challenging.

[It shall not be a cause of challenge that a juror has read in the
newspapers an account of the commission of the crime with which the
prisoner is charged, if such juror shall state on oath that he believes he
can render an impartial verdict according to the law and the evidence ;
and provided further, that in the trial of any criminal cause the fact that
a person called as a juror has formed an opinion or impression, based
upon rumor or upon newspaper statements (about the truth of which
he has expressed no opinion), shall not disqualify him to serve as a juror
in such case, if he shall, upon oath, state that he believes he can fairly,
and impartially render a verdict therein in accordance with the law and

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the evidence, and the court shall be satisfied of the truth of such state-
ment. (Act of April 10, 1888.)]

§ 210 [211]. Implied bias. A challenge for implied bias maybe
made —

1. If the juror be related by consanguinity, or affinity, or stand in
the relation of guardian and ward, attorney and client, master and ser-
vant, landlord and tenant, employer and employed on wages, or be a
member of the family of the defendant, or of the person alleged to be
injured by the offence charged, or on whose complaint the prosecution
was instituted ;

2. If he be adverse to the defendant in a civil suit, or have com-
plained against or been accused by him in a criminal prosecution;

3. If he have served on the grand jury which found the indictment,
or on the coroner's jury which inquired into the death of the party,
whose death is the subject of the indictment ;

4. If he have served on a trial jury, which has tried another person
for the offence charged in the indictment ;

5. If he have been one of a former jury sworn to try the same indict-
ment, and whose verdict was set aside, or who were discharged without
a verdict.

6. If he have served as a juror in a civil action brought against the
defendant for the act charged in the indictment;

7. When the offence is punishable with death, if he entertain such
conscientious opinions as would preclude him from finding the defend-
ant guilty.

The defendant, even in felony case, can waive objection to a juror on account of implied
bias. 9 Bush, 333.

§ 211 [217]. Exemption from service no ground of challenge. An ex-
emption from serving on a jury is not a cause of challenge.

§ 212 [212]. Challenge tried by the court. Challenges shall be tried
and determined by the court in a summary manner, without the issues
of law or fact arising thereon being reduced to writing, except when the
court disallows a challenge for implied bias.

§ 213 [213]. Juror may be examined on challenge. The juror may be
examined on oath by either party, upon the challenge,

§ 214 [214]. Other witnesses may be examined. Other witnesses may
also be examined, and their attendance coerced.

§ 215 [215]. Commonwealth to challenge before defendant. The chal-
lenges to the juror shall first be made by the Commonwealth, and then
by the defendant, and each party must exhaust his challenges to each
juror before the other begins.

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CHAP. V!.] TRIAL. 65

Each party must, in turn, exhaust his challenge to each juror of a panel when presented
10 be passed upon, and waives the right of challenge by failing to do so. 81 Ky. y 236-37.

§ 216 [216]. Order of challenges. The challenges of either party need
not be all taken at once, but separately, in the following order:
1 , To the panel :

2. To the juror for general disqualification:

3. To the juror for implied bias:

4. To the juror for actual bias :

5. Peremptory (a).

(a) The right to challenge without cause exists when twelve men have been proven
competent jurors upon a voir dire examination. 91 Ky. % 566.

Conduct of the Jury Trial.

J 217. Oath of jury to try issue.

\ 218. Oath if there be no issue.

\ 219. Indictment to be read and plea stated.

2 220. Commonwealth's attorney may then make a statement of the case.

2 221. Evidence for Commonwealth to be then offered.

2 222. Defendant or his counsel may then make a statement of the defence.

2 223. Evidence for defendant then offered.

2 224. Parties then confined to rebutting evidence, except by leave.

{ 225. Court must then instruct the jury in writing.

2 226. Jury may be excluded during argument upon instructions.

2 227. Order of argument.

2 228. Arguments to alternate if more than two.

2 229. Defendant to remain in custody during trial for felony.

2 230. Proceedings if it appear that the offence was committed out of jurisdiction.

J 231. Proceedings if committed out of the State.

1 232. Proceedings when proof shows a higher offence than charged in indictment.

2 233. Indictment to be quashed if -it do not charge an offence.

5 234. Joint defendants competent witnesses for each other, unless conspiracy charged.

2 235. All questions of law to be decided by the court.

2 236. Court may order view of places by jury. How conducted.

2 237. Joint defendants, in felony, entitled to separate trials.

2 238. Reasonable doubt entitles defendant to acquittal.

2 239. Doubt as to grade of offence, conviction should be of the lower.

2 240. Confession out of court', if uncorroborated, not to convict.

2 241. Testimony of accomplice not to convict if uncorroborated.

2 242. Court shall instruct jury to acquit if testimony required by law be not produced.

§ 243. How indictment dismissed.

2 244. When jury to be kept together, and when they may separate.

2 245. If kept together officers to be sworn.

2 246. Court to admonish jury.

2 247. How jury provided for, and expenses paid.

2 248. Jury to take with them all papers, &c, put in evidence.

2 249. How jury, after retiring, informed as to law and evidence.

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§ 250. If juror become sick before jury completed he may be excused.

I 251. Proceedings in case of sickness, accident, &c, after jury retire.

§ 252. If jury discharged case to be tried again.

{ 253. Court always open while jury is deliberating.

\ 254. Final adjournment discharges jury.

§ 217 [218]. Oath of jury to try issue. When a jury, consisting of
twelve qualified jurors, shall have been duly empanneled, they shall be
sworn substantially as follows :

41 You, and each of you, do solemnly swear, that you will well and
truly try the issue, and a true verdict render, in the case of the Com-
monwealth of Kentucky against A B, defendant."

§ 218 [219]. Oath if there be no issue. If no issue be made by the
pleadings, the words " well and truly try the issue, and " shall be omitted
from the oath.

§ 219 [220]. Reading of indictment to jury. The clerk, or Common-
wealth's attorney, shall then read to the jury the indictment, and state
the defendant's plea.

See 86 A>., 317.

§ 220. Statement of case by attorney for Commonwealth. The attorney
for the Commonwealth may then state to the jury the nature of the
charge against the defendant, and the law and evidence upon which he
relies in support of it.

§ 221 [221]. Introduction of evidence for Commonwealth. The counsel
for the Commonwealth must then offer the evidence in support of the
indictment* •

\An Act regulating the admission of evidence of disputed handwriting by

1. That in any action, prosecution or proceeding, civil or criminal,
which is now pending or may be commenced hereafter, upon a dispute
as to the genuineness of the handwriting of a person, other handwrit-
ings of such person, though not in the case for any other purpose, may
be introduced for the purpose of comparison by witnesses with the
writing in dispute ; and such writings, and the testimony of witnesses
respecting them, may be submitted to the court or jury as evidence
concerning the genuineness of the writing in dispute: Provided, that —
1. The genuineness of such writings shall be proved, to the satisfaction
of the judge, by other than opinion evidence.

2. It must be proved, to the satisfaction of the judge, that they were

' * 1. Religious belief or disbelief is not a test of the competency of a witness to testify. 80 JK>, 144.
a. The competency of witnesses in criminal cases, as affected by conviction for crime, is governed
by ch. 29, art. 8, § 8, of the General Statutes. 84 A>., 57 ; 86 Id., 3x8 ; 89 /<£, 5S9>

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CHAP, vi.] TRIAL. 6j

written before any controversy arose as to the genuineness of the writ-
ing in dispute, and that no fraud was practiced in their selection.

3. A party proposing to introduce such writings must give reasonable
notice of his intentions to the opposite party or his attorney, with reason-
able opportunity to examine them before commencement of the trial.

4. The judge may limit the number of such writings.

5. An error of the judge shall be subject to revision and correction
in the same manner as if the error had been committed by the court.
(Act of May 17, 1886.)]

§ 222. Statement by defendant or his attorney. The defendant, or his
attorney, may then state the nature of his defence, and the law and evi-
dence upon which he relies in support of it.

[ This was amended by an act of March 24, 1902, as follows :

' ' The defendent, or his attorney, may then state the nature of his
defence, and the law and evidence upon which he relies in support of
it: Provided, He may, at his option, make the statement herein
referred to immediately before the Commonwealth introduces any of its
testimony, and after the attorney for the Commonwealth, if he has so
desired, has made the statement for the Commonwealth."]

§223 [222]. Introduction of evidence for defendant. The defendant,
or his counsel, must then offer his evidence in support of his defence.*

[ I . An Act to permit defendants in all penal and criminal prosecutions to testify.

1. That in all criminal and penal prosecutions now pending or here-
after instituted in any of the courts of this Commonwealth, the defendant
on trial, on his own request, shall be allowed to testify in his own behalf,
but his failure to do so shall not be commented upon, or be allowed to
create any presumption against him or her.

2. The defendant requesting that he be allowed to testify shall not be
allowed to testify in chief after any other witness has testified for defence.

3. If two or more persons are jointly indicted, they may testify for
each other, unless a conspiracy is charged in the indictment and proven
to the satisfaction of the court.

4. If a conspiracy is charged in the indictment and proven to the
satisfaction of the court, then each defendant named in the indictment
may testify on his own behalf, as above provided in sections 1 and 2 of
this act. (Approved May 1, 1886.)]

[2. An Act of March 23, 1894, provided :

That section two hundred and thirty-four of the Criminal Code of
Practice, and subsections three and four of section two hundred and twenty-
three of the Criminal Code of Practice, be, and they are hereby, repealed.

•As to excluding witnesses from court-room, see 79 Ky., 432.

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EVIDENCE {\\ 221, 223)—

I. Testimony of defendants ; page 68.
II. Testimony of husband and wife, page 69.

III. Testimony on former trial, page 69.

IV. Res gesta, page 69.

V. Confessions and conversations ; page 70.

VI. Statements of co-defendants ; page 71.

VII. Statements of persons in combination, page 71.

VIII. Guilty knowledge, page 72.

IX. Dying declarations, page 72.

X. Opinions of experts and other witnesses, page 73.

XI. Secondary and hearsay evidence, page 73.

XII. Character of the accused and his co-defendants, page 74.

XIII. Character of the deceased, page 74.

XIV. Character of witness, page 74.
XV. Contradiction of witness, page 74.

XVI. Threats, page 75.

'XVII. Circumstantial evidence, page 75.

XVIII. Preponderance of evidence, page 76.

XIX. Evidence as to divers matters, page 76,

I. Testimony of defendants.

According to the common law, a defendant in an indictment was incompetent to testify,
not only for himself, but for a co-defendant, though tried separately, and though there may
have been no charge of conspiracy (17 B. M., 310); and that rule was recognized by the
Code of 1854, $ 232 of which, whilst leaving the common law in force as to the testimony
of defendants for themselves, declared that, upon a joint indictment of two or more per-
sons, if the court was of opinion that the evidence as to one was not sufficient to put him
on his defence, it must, on the motion of any party desiring to use him as a witness, order
him to be discharged from the indictment and permit him to be examined by the party so
moving. For that section was substituted \ 234 of the Code of 1877, declaring that, in
such cases, each defendant shall be a competent witness for the others, "unless the indict-
ment charge a conspiracy between them;" and under which it was settled that, to prevent
a defendant from testifying for a co-defendant, a charge of conspiracy was not sufficient,
but that its truth must be shown to the satisfaction of the court. See 13 Bush, 264; 79
Ay., 431 ; 81 Id., 465; 82 Id., 251 ; 85 Id., 129; 89 Id., 649.

The act of May 1, 1886, supra, whilst allowing defendants to testify for themselves,
prohibits them from testifying for co-defendants when a conspiracy is charged in the indict-
ment and proved to the satisfaction of the court.

The legislature, in passing the act of 1894, supra, evidently assumed that the act of
May 1, 1886, formed a part of \ 223 of the Criminal Code, though it was not declared to
be an addition to, or amendment of, and did not mention said section. Did the legislature
intend, by the act of 1894, to restore the common law as to defendants in criminal cases
testifying for co-defendants, or to remove all restrictions and make them competent to tes-
tify, not only for themselves, but for co-defendants, even in cases of conspiracy? If it re-
pealed \ 234 of the Criminal Code and \ 3 of the act of May I, 1886, as it purports to do,
we have no statute authorizing defendants in criminal cases to testify for co-defendants,
and are remitted to the common law on that subject. (See Averbeck, &V.,v. Hall, 14 BusK
505). If, however, though it repealed \ 234, it failed to repeal said subsection 3, the law is
the same now as it was held to be under § 234; and, however it may be as to the repeal of
J 234, it seems clear that, as to said subsection 3, the act of 1894 did not conform to } 5»
•of the Constitution.

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chap, vi.] TRIAL. 69

II. Testimony of husband and wife.

1. Even a divorced or surviving husband or wife can testify for or against the other as
to facts learned in consequence or by reason of the marriage relation : aliter as to facts
learned during marriage from other means of information than such as resulted from that
relation. (13 Bush, 155; 90 Ky., 580). And a letter from him to her is incompetent
against him, though he may have been compelled by the court, on cross-examination, to
admit that he wrote it. Scott v. Com., 15 Ky. L. K. t 251.

2. A husband or wife is competent to testify against the other as to any crime commit-
ted or attempted by the accused against the witness. 90 Ky., 580, overruling Turnbull v.
Ow., 79 A>.,495.

3. Upon the separate trial of one defendant, under a joint indictment against him and
se 'eral others, charging them with murder, the wives of the latter are competent witnesses
to prove an alibi for the former. 1 Met., 13.

4. The wife of one of three defendants in an indictment was a competent witness
against the other two after the indictment had been dismissed as to her husband. 12
Bush, 397.

And the wife of an accomplice, who testified against the accused, was held to be a com-
petent witness to corroborate her husband. 12 Bush, 181.

5. There are three states of case in which a wife can not be a witness for a co-defend-
ant with her husband: First, where her testimony, as in -case of conspiracy, would tend
directly to the acquittal of her husband ; secondly, where, as in the case of an assault, the
interests of all the defendants are inseparable; and, thirdly, where the rights of the hus-
band, though not a party to the suit or prosecution, would be concluded by any verdict
therein. 3 Met., 481.

III. Testimony given on former trial.

Upon a trial of the accused, the substance of the testimony of a deceased witness, but
not of a witness absent from the State, though his residence be unknown (12 Bush, 273),
on a former trial, may be proved by persons who were present at that trial, and heard the
statements of the witness, if they can remember and state the substance of all his testi-
mony. 17 B. M., 623-624; 6 Bush, 563; 10 Id., 190; 80 Ky., 246.

But, in a criminal case, the testimony of a deceased witness, upon a former trial, can
not be proved by a bill of exception, as this would be a violation of the constitutional
right of the accused to meet the witness face to face (10 Bush, 190); nor is evidence admis-
sible to prove that the deceased witness had stated that his evidence at the trial was false.
81 Ky,, 250.

IV. Res gestae.

1. Contemporaneous expressions of the assailant or of his coadjutors, or of the deceased
in cases of homicide, may be proved for the purpose of illustrating the character or qual-
ity of the act. 8 Bush, 147; 10 Bush, 576; 80 Ky., 399.

But statements or exclamations of bystanders in no way acting in concert with either
of the parties to the transaction are not, in general, admissible in evidence (10 Bush, 576;
84 Ky., 366); but were held to be admissible to prove that a peace officer, attempting to
make an arrest without a warrant, had reasonable ground to believe that a felony had been
committed (80 Ky., 387); and to prove that the accused had reasonable ground to believe
that his life was in danger when he killed the deceased {Stroud v. Com., 14 Ky. L. R., 179);
and proof that the deceased was a peace officer, acting as such when killed, was competent,
though the facts were not stated in the indictment. 88 Ky., 559.

And upon an indictment of W O for a conspiracy, proof that, at the inception of the
undertaking, and not in the defendant's presence, some one cried out "go for W O," was
incompetent. Omer v. Com., 15 Ky. L. A\, 694.

2. In 1 Met., II, the court said, without deciding the question: "It was held that a
statement made by a person, not then suspected of theft, and before any search made, ac-

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counting for his possession of property which he is afterwards charged with having stolen,
is admissible in his favor {Rex v. Abraham, 2 Karrington 6r» Kerwin, 550); and we are in-

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 126 of 142)