Minor v. Commonwealth , 12 Ky. Op. 211 ( 1883 )

Opinion by

Judge Hargis:

The jury were empanueled and sworn before the defendant was arraigned or entered his plea. So soon as this was done his counsel moved to discharge him, the court overruled the motion, directed the arraignment and the defendant pleaded not guilty and former jeopardy by reason of th'e irregularity named; thereupon the same jury were regularly sworn to try the issue, and having heard the evidence rendered a verdict of guilty fixing the defendant’s punishment at confinement in the penitentiary for life. From the judgment on the verdict he appealed, and now insists that the failure to have the arraignment and plea entered before the jury was sworn the first time, placed him in legal j eopardy notwithstanding the arraignment and plea were made and the jury thereafter properly sworn to try the issue. There is no substance in this point. It was one trial, and the premature swearing of the jury did no harm as they were subsequently and at the proper stage duly sworn before the introduction of any evidence.

Welsh & Saufley, for appellant. P. W. Hardin, for appellee. [Cited, Vinegar v. Commonwealth, 104 Ky. 106, 20 Ky. L. 412; 46 S. W. 510.]

The statement by the decedent that the defendant went out at the back door and came around and asked “who do this,” at the time the declarant was shot, was not prejudicial but beneficial to the appellant, -as it is consistent with his plea of not guilty and tends to uphold it.

Criminal Code 1876, § 247, requires the sheriff to provide suitable food and lodging for the jurors while they are kept together. The lodging of the jury at- a hotel on its second floor in different rooms along the same hall, in which the sheriff locked them at night, when no charge is made of tampering with them by any one, and no proof tending to sustain such a charge is offered, but evidence is shown tending to negative any pretense that the jury were tampered with, is in our opinion from the necessity attending the lodging of the jury a sufficient compliance with the requisitions of the code relative to keeping the jury together.

Wherefore the judgment is affirmed.