The only modifications, therefore, of the ancient mode of trial by jury made by the Constitution as contemplated and sanctioned by section 7, Bill of Rights, are contained in section 248 of that instrument, and in sections 2252-2268, Kentucky Statutes, subsequently enacted by the General Assembly be cause by it deemed necessary to put into effect such of the provisions of section 248, Constitution, as were not self-executing. But it will be observed that neither by any provisions of that section of the Constitution, nor of either of the two sections of the statutes, supra, are those modifications, or any of them made to include or apply to prosecutions or trials for felony.

The three sections concur, however, in the requirement that a petit jury in the circuit court shall consist of 12 persons, and together with section 7 (Bill of Rights). Constitution, preserve to any and all persons charged with felony the "ancient mode of trial by jury."

[2] Manifestly, the language of the section 2252 of the Statutes, forbidding the parties to a prosecution for a felony, which can be tried only in the circuit court, to agree to a trial of the accused by a jury composed of a less number of persons than the 12 required both by the Constitution and statute to constitute a petit jury in that court, is mandatory. The inhibition thus declared by the statute and authorized by the Constitution is as binding upon the commonwealth as it is upon the accused, and so positive in meaning and effect as to outlaw any agreement that might be made by the parties to a prosecution for a felony to a trial of the accused by a jury of a less number of persons than 12, and put it out of the power of the circuit court to permit such an agreement or a trial of the accused in pursuance thereof. Indeed, the trial and conviction of one charged, as was the appellant, by indictment with a felony, under such an agreement as was carried into effect in his case would, if the conviction were permitted to stand, amount to an abrogation of the ancient mode of trial

Therefore it is our conclusion that the appellant's conviction of the crime charged was not obtained by means of such a trial by jury as is guaranteed by the Constitution and laws of this state. While it may be true, as intimated by counsel for the commonwealth, that the appellant made the agreement to be tried by a jury of only 7 persons, with the knowledge that it was forbidden by the statute, and with the intention of relying upon his legal inability to make such an agreement as a means of escaping conviction of the crime charged, should such conviction result on the trial, that fact, however potent its effect as tending to prove the bad faith of the appellant, cannot authorize the affirmance of the judgment.

The mandatory meaning and effect of the inhibition of the statute forbidding any agreement between the parties to a prosecution for felony that the accused be tried by a jury composed of a less number of persons than 12 cannot be destroyed or waived by such an agreement. The inhibition, however, does not exclude the making or carrying out of such an agreement by the parties to a civil action or prosecution for a misdemeanor.

In Murphy v. Com., 1 Metc. 365, and Tyra v. Com., 2 Metc. 1, both of which cases were decided prior to the adoption of the present state Constitution, and also before the enactment of section 2252, Kentucky Statutes, supra, it was held that in prosecutions for misdemeanors, where the penalty imposed is a fine, an agreement by the defendant to be tried by a jury constituted of a less number than 12 persons is not inconsistent with any rule of law or with public policy; and in the recent case of Phipps v. Com., 205 Ky. 832, 266 S. W. 651, we held that:

"A defendant in a misdemeanor trial in the circuit court is entitled to 12 jurors, but may agree to a lesser number or waive any number or all of the jurors, and submit the law and

facts to the court."

But the brief of counsel for the commonwealth has failed to cite, nor have we after a careful search been able to find, any case decided in this jurisdiction in which it was held with respect to a prosecution for felony that an agreement by the defendant to be tried by a jury composed of a lesser number than 12 persons was permissible, or that sustained a conviction of the defendant of a felony, obtained by verdict of a jury so constituted. There is, however, abundant authority holding invalid a judgment of conviction so obtained in a prosecution for felony. Thus, in Cooley's Constitutional Limitations, (6th Ed.) p. 390, the learned author, in discussing the constitutional requirement that a jury in the trial of one charged with a felony shall consist of 12 persons, declares:

"Any less than this number of 12 would not be a common-law jury, and not such a jury as the Constitution guarantees to accused parties, when a less number is not allowed in express terms; and the necessity of a full panel could not be waived-at least in case of felony, even by consent. The infirmity in case of a trial by jury of less than 12 by consent would be that the tribunal would be one unknown to the law, created by mere voluntary act of the parties; and it would in effect be an attempt to submit to a species of arbitration the question whether the accused has been guilty of an offense against the state."

But where as in this case the single error complained of and all steps and proceedings relating thereto, including the rulings complained of and excepted to, appear on the face of the record in the trial court through the orders and judgment of that court, the whole being a complete narrative and explanatory of what was done therein, the preparation and filing of a bill of exceptions will not be required. It is only errors not appearing on the face of the record proper that, in order to be reviewed, must be made a part of the record by bill of exceptions. For the reasons indicated, the judgment is

It is true the three cases last cited were what are classed as capital cases, but what is declared in the excerpt quoted from the opinion in Keeling v. Com., supra, is equally applicable to the case at bar; for, as its language unmistakably shows, section 2252 of the statute, supra, makes no distinction between what are known as capital crimes and other felonies. Its language sweepingly embraces all felonies of whatsoever kind, and its mandatory requirement that one subjected to trial for felony in the circuit court must be tried by a jury composed of 12 persons, and forbidding his trial, even though agreed to by him, by a lesser number of jurors than 12, was as applicable to the felony with which the appellant was charged as if it had been a capital offense or crime; and the action of the circuit court in permitting him to be tried by the jury of 7 persons must be held to constitute reversible error.

[3, 4] It is insisted by counsel for the commonwealth that the error complained of cannot be reviewed by this court because of the absence of a formal bill of exceptions showing what transpired at the appellant's trial. No reason is apparent for sustaining this contention.

"The office of a bill of exceptions is to bring to the appellate court for review such parts of the proceedings and facts occurring at the trial as are not required by the rules of practice

to be enrolled on the order book or record of the court, and the only way such proceedings and facts as are not thus required to be enrolled can properly become a part of the record is by a bill of exceptions duly certified as required by law." Tull v. Com., 187 Ky. 413, 219 S. W. 409.

trial and such other proceedings as may not be inconsistent with the opinion. The whole Court sitting.

LANFORD v. COMMONWEALTH. (Court of Appeals of Kentucky. June 19, 1925.)

1. Robbery 26-Defendant's participation in transactions in evidence held for jury on conflicting testimony.

Whether defendant participated in transactions in evidence held for jury on conflicting testimony, in prosecution for robbery.

2. Statutes

143-Act imposing penalty not affected by unconstitutional amendment.

Acts. 1922, c. 97, being unconstitutional, Ky. St. § 1159, imposing penalty for, robbery, remains in effect as it stood before purported amendment by such void statute.

3. Robbery 17(7) Indictments averring force not demurrable for failure to allege putting in fear of bodily harm.

Indictments for robbery with force and arms and by putting in fear, sufficiently averred force, and hence were not demurrable for not alleging that defendant put named person in fear of some bodily harm.

4. Robbery 7-May be committed by threats of injury to property or reputation as well as bodily harm.

Robbery may be committed by obtaining property from person of another by threats of injury to his property or reputation, as well as by putting him in fear of bodily harm. 5. Robbery 17(7)-Fear of bodily harm need not be alleged in indictment for "robbery."

While taking of personal property in another's possession from his person or in his presence by violence or putting him in fear must be alleged in indictment for robbery, kind of fear, whether of bodily harm or injury to property or reputation, need not be alleged.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Robbery.]

ty.

Appeal from Circuit Court, Harlan Coun.

DIETZMAN, J. Appellant was tried under two indictments charging him with the offense of robbery. He was found guilty and sentenced to five years' imprisonment in each case. By agreement the two cases were heard together in the lower court and here. [1] It appears that appellant was a prisoner in the Harlan county jail, and while | such Dewey Wynn and Goebel Wynn came to the jail for the purpose of visiting some friends therein; that while they were in one of the cells the defendant, armed with a large broom handle or stick, placed himself in the doorway of the cell, barred it with the broom handle or stick, and demanded from each of them the sum of 25 cents. When they demurred to the payment of this, he told them that unless they would pay it he would come in to the cell and "bust hell out of them," and, being in fear of him, they paid the money rather than have any trouble. Appellant denies these facts, and says that he did not participate in these transactions. There is an abundance of evidence to contradict him, and the jury had a right to believe the commonwealth's side rather than that of appellant.

[2] For reversal, it is first urged that there is no statutory penalty for the crime of robbery in this state. This contention is bottomed on the opinion of this court in the case of Gibson v. Commonwealth, 204 Ky. 748, 265 S. W. 339. However, since appellant briefed this case for this court, we have withdrawn the opinion in the Gibson Case, supra, and on a petition for rehearing have held that chapter 97 of the Acts of 1922, purporting to amend section 1159 of the Kentucky Statutes, is unconstitutional. Gibson v. Commonwealth (Ky.) 272 S. W. 43 (decided May 15, 1925). Hence section 1159 of the Kentucky Statutes, as it stood prior to said purported amendment, is and was at the time of the transactions herein complained of still in full force and effect. Nuetzel v. State Tax Commission, 205 Ky. 124, 265 S. W. 606. As section 1159, Kentucky Statutes (1922 Ed.), fully covers the matter of penalty for the crime of robbery, there is no merit in appellant's first contention.

[3] Appellant next contends that the demurrer to the indictments in these cases should have been sustained or, failing this, the court should have given a peremptory instruction on the proof to find for appellant. The indictments charge the appellant in each case with "unlawfully, willfully, and feloniously with force and arms, and by putting in fear" the named person, taking from such person 25 cents against his will and consent, and for the purpose of permanently depriving him of his personal property. It is urged that the indictment is defective because it does not say that appellant put the named person in fear of "some bodily harm." In the case of Blanton v. Commonwealth, 139 Ky. 411, 58 S. W. 422, 22 Ky. Law Rep. 515, we defined robbery as the felonious taking of property from the person of another by force, and held that the taking must be by violence or by putting the owner in fear, but that both of these circumstances need not concur. We further held that it was sufficient in such an indictment to aver force only. As both indictments in these cases sufficiently averred "force," it is apparent that they were not demurrable. Appellant insists, however, that, though the indictments be not demurrable, he was entitled to a peremptory instruction because the proof failed to disclose a taking by force, but, if anything, only by fear and the averment of fear in the indictment was not sufficient, in the particular above mentioned, to support a conviction for taking by fear.

[4, 5] The fear which will make a felonious taking, as here, robbery need not necessarily be fear of bodily harm as insisted by appellant. Robbery may be committed by obtaining property from the person of another by threats of injury to his property and under some state of case of injury to his reputation. 34 Cyc. 1801. Robbery is usually defined as the taking with intent to steal of personal property in possession of another from his person or in his presence by violence or by putting him in fear. Although these essential elements must appear in an indictment for this offense, yet the kind of fear by which the robbery is effected need not be alleged. 34 Cyc. 1803. Hence the indictment in this case was amply sufficient to warrant an instruction to the jury based on a taking by putting in fear and to sustain a conviction obtained thereby.

These are all grounds urged against appellant's conviction, and, as they are without merit, the judgment of the lower court is affirmed in both cases.