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cept by the adviceand with the consent of such attorney.

44 § 40. The provisions of this article shall not apply to any police
court for which an attorney has been elected or appointed to prose-
ecu te."]



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gO TRIAL. [TITLE VI.

§ 244 [242, 245]. When jury must be kept together. On the trial of
offences which are or may be punished capitally the jurors, after they
are accepted, shall not be permitted to separate, but shall be kept to-
gether, in charge of the proper officers {a). On the trial of other fel-
onies the jurors, before the case is submitted to them, may be permit-
ted to separate in the discretion of the court, but after the case is sub-
mitted they shall be kept together in charge of an officer. On the trial
of misdemeanors the jurors may be permitted to separate at any time
until finally discharged, or the court may order them to be kept together.

(a) I. It was not ground for a new trial that six of the jury, after the case was submit-
ted to them, were allowed to sleep in one room, and six of them in an adjacent room, the
sheriff lodging in still another room. It was sufficient that the jury were in fact present
with each other, though in adjoining rooms, and that the sheriff was in such convenient
situation as to prevent any attempt to tamper with them. 2 Busk, 81.

2. Where some of the jury, after the case was submitted to them, conversed with other
persons, not in the presence of the sheriff, it was for the Commonwealth to show that no
undue influences were used; and, failing to do so, a new trial was properly granted the
defendant. 2 Bush, 81.

3. Failure to keep the jury together, being objected to for the first time in a motion
for a new trial, can not be considered by the Court of Appeals. 14 BusA, 340.

§ 245 [242]. Officers in charge of jury to be sworn. When a jury is
kept together in charge of officers, the officers must be sworn to keep
the jurors together, and to suffer no person to speak to, or communicate
with, them on any subject connected with the trial, and not to do so
themselves.

The failure to swear the sheriff to keep the jury together, as required by this section,
is ground for a new trial ; but if first sworn, it is not necessary to administer a new oath at
each adjournment or recess of the court. 2 Bush % 81.

§ 246 [243]. Admonition to jury. The jury, whether permitted to
separate or kept in charge of officers, must be admonished by the court
that it is their duty not to permit any one to speak to, or communicate
with, them on any subject connected with the trial, and that all attempts
to do so should be immediately reported by them to the court, and that
they should not converse among themselves on any subject connected
with the trial, nor form nor express any opinion thereon until the
cause be finally submitted to them. This admonition must be given or
referred to by the court at each adjournment.

§ 247 [244, 245]. How jury provided for. A suitable room must be
provided for the use of the jury on their retirement for deliberation,
with suitable furniture, fuel, lights, and stationery ;' and suitable food
and lodging must be provided, by the sheriff, for jurors while they are
kept together, and the expense thereof paid by the trustee of the jury
fund and deducted from the compensation of the jurors.



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chap, vi.] TRIAL. 91

§ 248 [246]. Jury to take papers, &c. , put in evidence. Upon retiring
for deliberation, the jury may take with them all papers and other
things which have been received as evidence in the cause.

§ 249 [247]. How jury, after retiring, informed as to law or evidence.
After the jury retires for deliberation, if there be a disagreement be-
tween them as to any part of the evidence, or if they desire to be in-
formed on a point of law, they must require the officer to conduct them
into court. Upon their being brought into court, the information re-
quired must be given in the presence of, or after notice to, the counsel
of the parties.

§ 250. Sickness of juror before jury completed. If, after a juror has
been accepted, but before the jury has been completed, one of the ac-
cepted jurors become so sick as to prevent the continuance of his duty,
the court may excuse such juror, and complete the formation of the
jury as if he had not been originally accepted.

§ 251 [248]. Sickness, accident, &c, after retirement of jury. If, after
retirement, one of the jurors become so sick as to prevent the contin-
uance of his duty, or other accident or cause occur, preventing them
being kept together, or if, after being kept together such a length of
time as the court deems proper, they do not agree in a verdict, and it
satisfactorily appear that there is no probability they can agree, the
court may discharge the jury; or if the sickness of a juror be tempo-
rary, the court may permit him to separate from the other jurors, and
may place him in charge of an officer, or not, in its discretion.

1. This section was not intended to limit the power of the court to discharge a jury to
the causes enumerated therein, but only as an adoption of the legal rule that a case of
actual necessity must exist before a jury shall be discharged. 9 Bush y 337, 338.

2. As to the effect of discharging the jury without necessity, see note (r) 1, ante, p. 55.

§ 252 [249]. If jury discharged cause to be tried again. In all cases if
a jury be discharged, either in the progress of a trial or after the cause is
submitted to them, the cause may be again tried at the same or another
term of the court.

§ 253 [250]. Court always open while jury deliberating. While the jury
are absent, the court may adjourn from time to time as to other business,
but it shall be deemed open for every purpose connected with the cause
submitted to the jury, until a verdict is rendered or the jury discharged.

A verdict rendered on Sunday was valid and authorized judgment on a subsequent day.
78 A>., 586.

§ 254 [25 1]. Final adjournment discharges jury . A final adjournment
of court discharges a jury.



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Q2 TRIAL. [TITLE VI.

ARTICLE VI.

Verdict.
i 255. How verdict rendered.
i 256. Verdict may be general or special.
i 257. General verdict defined.
% 258. Jury to fix the degree of punishment.
$ 259. Special verdict defined.
J 260. What a special verdict must contain.

I 261. Court not to receive special verdict unless it conforms to {260.
J 262. Defendant may be found guilty Of any degree of offence not higher than thit

charged : or of any included offence.
§ 263. Degrees of offences defined.

J 264. What offences are included in the offence charged,
j 265. If shown guilty of higher degree defendant may be convicted of the degree

charged.
$ 266. Jury may make verdict as to all or any of several defendants.
§ 267. Jury may be polled.
\ 268. Proceedings if defendant acquitted on the ground of insanity.

§ 255 [252]. How verdict rendered. When a jury have agreed upon
their verdict, they must be conducted into court by the officer having
them in charge, their names called by the clerk, and, if they all appear,
their foreman must declare their verdict.

Accused must be present when a verdict is rendered against him. [4 Bush, 769.

§ 256 [253]. May be general or special. The jury may render either
a general or a special verdict.

§ 257 [254]. General verdict defined. A general verdict —

1. Upon a plea of guilty, is "guilty," and affixing the punishment
in cases in which the jury is required to determine the degree of punish-
ment:

2. Upon a plea of "not guilty/' is "guilty" or "not guilty;" and
if "guilty," fixing the offence, and the degree of the offence; and the
punishment, in cases in which the jury is required to fix the degree of
punishment (a):

3. Upon a plea of former acquittal or conviction, is "for the Com-
monwealth," or "for the defendant," and, if for the Commonwealth,
fixing the offence and degree of the offence, and the punishment, in
cases in which the jury is required to determine the degree of punish-
ment.

(a) I. Upon an indictment for murder, a verdict of "guilty as charged in the indict-
ment," and fixing the penalty at death, was sufficient. 86 Ay. f 323, 324.

a. Upon an indictment for uttering a forged writing, the verdict found the defendant
"guilty of forgery as per indictment;" and the judge, with consent of the jury, erased
the words "of forgery as per indictment," which was held to be proper. Blair ▼. Com. 9
14 Ky. L. B., 495,



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CHAP. VI.] TRIAL. 93

§ 258 [254]. Jury to fix penalty. In verdicts of "guilty," or "for
the Common wealth," the jury shall fix the degree of punishment to be
inflicted, unless the same be fixed by law.

1. It is error for the court, upon a verdict of guilty, to fix the punishment, when it is
in the alternative. 79 Ky., 38.

2. As to the punishment of a defendant found guilty of an assault and battery, see
Cerntiison v. Com., 84 Ky., 583.

3. Under an indictment for "feloniously breaking a store-house, with intent to steal,
and stealing articles therefrom," it was error to instruct the jury as to grand and petit lar-
ceny ; and the error was not cured by a verdict finding the defendant "guilty as charged
in the indictment," and fixing his punishment at three years in the penitentiary. 90
A>., 632.

§ 259 [255]. Special verdict defined. A special verdict is a finding of
the facts only, leaving the law arising on the facts to the judgment of
the court, with an ascertainment of the punishment in the event that
the court pronounces a judgment of conviction on the verdict, in cases
in which the jury is required to determine the punishment.

1. An indictment for grand larceny having alleged that the accused had been twice
convicted on a similar charge, it was the duty of the court to so instruct the jury as to
enable them to find the fact as to former convictions separate from their verdict as to the
pending charge, as the cfourt could not give judgment for the increased penalty without
such fact being found by the jury. 80 Ay., 468.

2. Direction to the jury to determine whether the facts submitted to them "were estab-
lished by a preponderance of the evidence," without saying beyond a reasonable doubt,
was erroneous. 82 Ky., 133.

§ 260 [256J. Requisites of special verdict. A special verdict must pre-
sent the conclusions of fact as established by the evidence, and not the
evidence of those facts, and the facts must be so presented that the
court has nothing to do but draw the conclusions of law upon them.

§ 261 [257]. Not to be received unless sufficient according to § 260. The
special verdict must be reduced to writing by the jury, and read to them
in the presence of the court. It shall not be received by the court,
unless it pronounce, affirmatively or negatively, on the facts necessary
to enable the court to give judgment.

§ 262 [258]. Defendant may be convicted of any degree of offence not
higher than that charged; or of any included offence. Upon an indictment
for an offence consisting of different degrees, the defendant may be found
guilty of any degree not higher than that charged in the indictment,
and may be found guilty of any offence included in that charged in the
indictment.

Though no distinction is made in the language of this section or of § 263, between com-
mon law offences and statutory offences, in Conner v. Com., 13 Bush, 714, the court, perhaps
unnecessarily for the purposes of that case, expressed the opinion that they refer only to
common law offences. But in Usher v. Com. % 2 Duv., 394, the court said : "By the corn-



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94 TRIAL. [TTTtX TL

mon law, and by } 258 [now \ 262] of tbe Criminal Code, the accused may be fomd gtStj
of the inferior offence under an indictment charging a higher offence, which includes k.
The 259th [now the 263d] section of the Code does not undertake to enumerate all of Ae
offences which shall be deemed to be degrees of other named offences ; M and heW that,
under an indictment for the statutory offence of unlawfully shooting at another, with iateat
to kill or wound him, the defendant could be convicted of the common law offence of
trying to shoot him with such intent ; and, in view of the provisions of § 262, it has beee
held that under an indictment for the statutory offence of gaming with a negro for mosey,
the defendant could be convicted of the statutory offence of gaming with a negro,
though no money was at stake (3 J/<r/., 478); that, under an indictment for the statutory
offence of promoting a lottery, he could be convicted of the statutory offence of aiding ib
such promotion (13 Bush, 731); that, under an indictment for the statutory offence of will-
fully and maliciously striking another with a deadly weapon, with intent to kill him, iht
defendant could be convicted of the common law offence of assault and battery (91 A/.,
592); that, under an indictment for the common law offence of rape, he could be convicted
of the statutory offence of carnally knowing the female (82 A>., 549); and that a coavie-
tion of the common law offence of a breach of the peace barred an indictment for the stat-
utory offence of willfully and maliciously striking and wounding with a deadly weapua.
78 Ky. t 238.

§ 263 [259].. Degrees of offences defined. The offences named in each
of the subdivisions of this section shall be deemed degrees of the same
offence, in the meaning of the last section :

1. All offences of homicide (a) :

2. All injuries to the person by maiming, wounding, beating, and
assaulting, whether malicious or from sudden passion, and whether
attended or not with the intention to kill (fi) :

3. All offences of larceny (c) :

4. Arson and house-burning (d):

5. Burglary and house-breaking :

6. An offence, and the attempt to commit the offence, if the attempt
be punishable:

7. Offences which are or may be punished capitally are of the
highest degree ; other felonies are of higher degree than misdemean-
ors ; and those punished by imprisonment of higher degree than those
punished by fine alone. If the punishment be the same in kind, the
amount that may be inflicted fixes the degree.

(a) I. An indictment for shooting with intent to kill and murder authorized a Terdkt
for shooting with intent to kill or wound. 16 B. Af. t 609.

2. An indictment for malicious stabbing, with intent to kill, authorized a verdict for
the misdemeanor of stabbing in sudden heat and passion, and not in self-defence. 2 JfaL, 1.

3. Though, under an indictment for murder, the accused may be convicted of volar.-
tary or involuntary manslaughter, when warranted by the evidence ; if it show that he has
committed the statutory felony of killing by striking without intent to kill, he can not be
convicted of that offence under an indictment for murder; nor can he be convicted of vol-
untary manslaughter, the killing having been unintentional; but he may be convicted 0/
involuntary manslaughter. 13 Bush % 714; 14 /</., 601 ; 78 Ky^ 176.

(b) A fine for breach of the peace bars an indictment for assault and battery (3 Met., 1;






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CHAP. VI.] TM AL. 95

1 1 JBush, 603) ; or an indictment for willfully and maliciously striking and wounding with
a deadly weapon. 78 Ky. % 238. But under an indictment for assault, it is error to allow
proof of battery. 14 Bush, 180.

(c) 1. Under an indictment for robbery, the court erred in refusing to instruct the jury
that the defendant might be convicted of larceny. 82 Ay., 240.

2. Under an indictment for assault with intent to Fob, the court erred in refusing to
instruct the jury that they might find the defendant guilty of the misdemeanor of assault
and battery. Barnard v. Com,, 15 Ay. L. R., 51.

3. Acquittal or conviction of the offence of burglary bars prosecution for larceny form-
ing part of the same transaction. 84 Ky., 193.

(</) Under an indictment for arson, the defendant may be convicted of an attempt to
commit arson. 12 Bush, 243.

§ 264 [260]. What offences are included in offence charged. If an
offence be charged in an indictment to have been committed with par-
ticular circumstances as to time, place, person, property, value, motive,
or intention, the offence without the circumstances, or with part only,
is included in the offence, although that charged may be a felony, and
the offence, without the circumstances, a misdemeanor only.

§ 265 [261]. Although higher degree of offence be proven, conviction
may be of the degree charged. If the proof show the defendant to be
guilty of a higher degree of the offence than is charged in the indictment,
the jury shall find him guilty of the degree charged in the indictment

§ 266 [262]. Jury may return verdict as to all, or any, of several de-
fendants. Upon an indictment against several, the jury may return a
verdict of "guilty" as to some, and "not guilty" or a special verdict
as to others : if the jury can not agree as to all the defendants they may
find a verdict as to those concerning whom they do agree.

§ 267 [263]. Polling the pay. Upon a verdict being rendered, the
jury may be polled, at the instance of either party, which consists of the
clerk or judge asking each juror if it is his verdict, and if one answer in
the negative, the verdict can not be received.

The defendant has a right "by polling to demand face to face of each juror whether
the verdict is his verdict, and to object to it unless each member of the jury shall answer
for himself that the verdict is his. 14 Bush, 769.

§ 268 [264]. Verdict and proceedings on plea of insanity. If the de-
fence be the insanity of the defendant, the jury must be Instrucfed, if
they acquit him on that ground* to state the fact in their verdict, and
thereupon if the court, after hearing any testimony offered by the Com-
monwealth or the defendant, be satisfied that he is insane, at the time the
verdict is rendered, it may order him to be taken to a lunatic asylum.



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g6 NEW TRIAL AND ARREST OF JUDGMENT. [titli tl



CHAPTER VII.

New Trial and Arrest of Judgment.

$ 269. New trial defined.

$ 270. Effect of granting a new trial.

\ 271. Grounds on which it may be granted.

\ 272. Juror can only be examined to show that verdict was by lot.

$ 273. When application for new trial must be made.

$ 274. Grounds must be written and filed with motion.

$ 275. Motion in arrest of judgment defined.

§ 276. Grounds for arrest of judgment.

§ 277. When motion for may be made.

J 278. Court may arrest judgment without motion.

} 279. On arresting judgment the court may detain defendant for further proceedings.

§ 269 [265]. New trial defined. A new trial is the re-examination
of an issue of fact in the same court, by another jury, after a verdict
has been given.

Overruling motion for a new trial does not prevent a renewal of it on an a mended
affidavit. 89 A>., 308.

§ 270 [266]. Effect of granting new trial. The granting of a new trial
places the parties in the same position as if no trial had been had. All
the testimony must be produced anew, and the former verdict can not
be used or referred to in evidence or in argument.

This section is constitutional. 83 Ky^ 1.

§ 271 [267]. Grounds for new trial The court in which a trial is
had upon an issue of fact may grant a new trial, if a verdict be rendered
against the defendant, by which his substantial rights have been preju-
diced, upon his motion, in the following cases :

1. If the trial in a case of felony were commenced and completed
in his absence :

2. If the jury have received any evidence out of court other than
that resulting from a view as provided in this Code :

3. If the verdict have been decided by lot (a), or in any other man-
ner than by a fair expression of opinion by the jurors:

4. If the court have misinstructed or refused properly to instruct
the jury:

5. If the verdict be against law or evidence (6):

6. If the defendant have discovered important evidence in his favor
since the verdict :

7. If from the misconduct of the jury, or from any other cause (c).
the court be of opinion that the defendant has not received a fair and
impartial trial.



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tAP. vii. J NEW TRIAL AND ARREST OF JUDGMENT. 97

(a) But refusal of the court to grant a new trial because the verdict had been decided

lot is not ground for a reversal (J 281 ; 82 Ky. f 333, overruling 80 Ky. % 148). The de-
ndant, to avail himself of the error in the Court of Appeals, should have moved to set
ide the verdict, with an exception to the decision, if adverse.

(£) If there be a conflict in the evidence, a judgment of conviction will not be reversed
1 the ground that it is against the evidence. 1 Afr/., 6, 365; 86 A}., 315; 92 Id., 612;
crverly v. Com., 15 Ky. L. R., 285.

(<r) 1 . Though, in general, surprise of the defendant, by failure of a witness to testify
; was expected, is not ground for a new trial; when a witness, by direction of the Cont-
ort wealth's attorney, failed to inform the defendant that the witness* testimony for him
1 application for bail was false, the defendant was entitled to a discharge of the jury and
>ntinuance of the case. 82 Ky., 430.

2. The court should not permit the Commonwealth's attorney to state in the presence
f the jury what he expects to prove by a witness whose testimony is objected to and is
icompetent. 81 Ky., 186. And see 81 Ky., 450; 87 Id., 41 ; 86 Id., 663; 89 Id., 361, 364.

§ 272 [268]. Juror can only be examined to show tJiat verdict was by lot.
\ juror can not be examined to establish a ground for a new trial, ex-
:ept it be to establish that the verdict was made by lot.

See 3 Bush, 19; 82 Ky., 333.

§ 273 [269]. When motion for new trial must be made. The applica-
tion for a new trial must be made at the same term at which the verdict
is rendered, unless the judgment be postponed to another term, in which
case it may be made at any time before judgment.

§ 274. Grounds must be written and filed with motion. The grounds
upon which a motion for a new trial is made must be stated in writing,
and filed at the time of making the motion.

See 3 Bush, 480. But the defendant can maintain an appeal for the correction of an
error not named in J 271, the existence of which is shown by his bill of exceptions, though
he failed to name it on his motion for a new trial [Johnson v. Com., 9 Bush, 224; Turnbull
v. Com., 79 Ky., 495); and it seems, as was intimated in Johnson v. Com., that the defend-
ant can maintain an appeal to correct such an error, so shown, without having moved for
a new trial (see note [d) to \ 281); and that, perhaps, as in civil cases, a bill of exceptions
is unnecessary as to any matter of record. (See note (a) to J 333 of the Civil Code, ante, p. 264.)

§ 2 75 [ 2 7°]- Motion in arrest of judgment. A motion in arrest of
judgment is an application, on the part of the defendant, that no judg-
ment be rendered upon a verdict against him, or on a plea of guilty.

§ 276 [271]. Grounds for arrest of judgment. The only ground upon
which a judgment shall be arrested is that the facts stated in the indict-
ment do not constitute a public offence within the jurisdiction of the
court.

1. It is not necessary to state the ground of a motion in arrest of judgment. The
court will presume that it was for the reason that no public offence was charged. II
Bush, 162.

2. Although the alleged offence may be so defectively stated as to make the indictment



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98 BILL OF EXCEPTION. [title XL

bad on demurrer ; still, if any public offence has been committed by the accused, within
the jurisdiction of the court, conceding the facts stated in the indictment to be true, the
judgment should not be arrested. 11 Busk, 154.

3. A judgment can be arrested only when the facts stated in the indictment do not
constitute a public offence within the jurisdiction of the court. 16 B. M., 36; 17 B. Af.,
409; 6 Bush, 91 ; 10 Id., 196.

4. Though several persons be jointly indicted for distinct offences charged to have
been jointly committed, when not susceptible of a joint commission, if the indictment
charge the one on trial in person with the commission of the offence, the judgment should
not be arrested. When the indictment is joint, if it appear in the proof that the party 00
trial was the only one concerned in the commission of the offence, there may be a verdict



Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 130 of 142)