Sullivan v. Commonwealth (Second Case) , 304 Ky. 783 ( 1947 )

Reversing.

Appellant has appealed from a conviction under an indictment charging him with the unlawful sale of intoxicating liquor in local option territory. This case was tried immediately after appellant's conviction under an indictment charging him with unlawfully having intoxicating liquor in his possession for purposes of sale in local option territory. The opinion on the appeal of that case, rendered today, is reported in 304 Ky. 780, 202 S.W.2d 619. The Commonwealth relied on the same evidence for conviction in both cases.

The Court impaneled eighteen jurors to try appellant on the second charge. Seven of the panel were members of the jury which tried appellant in the first case. Appellant challenged these jurors for cause and moved the Court to discharge them from the jury panel; the motion was overruled, and the case was tried by twelve jurors selected from the panel submitted.

In Cross v. Commonwealth, 270 Ky. 537, 109 S.W.2d 1214,1216, we said:

"A defendant in a criminal case, as well as the Commonwealth, is entitled to a jury composed of fair and impartial jurors free from bias, actual or implied, * * *."

We believe that it would be impossible for a juror, who has convicted a defendant of possession of the very article that he is charged with selling, to sit on the trial of the second case without previously having formed an opinion as to the defendant's guilt, when the same evidence is relied upon to establish the charge of selling as previously was relied upon to establish the charge of possession. The Court should have sustained the challenge to the jury panel.

All other questions are reserved.

The judgment is reversed.