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(200 Ky. 509, 255 8. W. 125.) facie prejudicial, requiring a new forging words in a receipt, enlarged trial.

photographs of the receipt are adEvidence, & 721 - forgery - enlarged

missible in evidence. photographs. 4. Upon trial of an indictment for [See note in 31 A.L.R. 1437.)

APPEAL by defendant from a judgment of the Circuit Court for Clark County convicting him of forgery. Reversed.

The facts are stated in the opinion of the court. Messrs. Redwine & Redwine, J. court below and overruled by that Smith Hays, and C. C. Wallace for ap- court. Before acting upon the mopellant.

tion for a new trial the trial court Messrs. T. B. McGregor, Attorney

refused to permit the appellant to General, and Lilburn Phelps, Assist

prove by the members of the jury, or ant Attorney General, for the Common

some of them, what was said or done wealth.

by him or them when and after he Settle, J., delivered the opinion of

entered their room alone, before the the court:

return of their verdict, but added The appellant, C. F. Puckett, by himself, to the bill of exceptions his the prosecution of this appeal, seeks

own statement of what he claimed the reversal of a judgment of the

was then said by him to the jury, Clark circuit court convicting him of which is as follows: “Gentlemen, the crime of forgery, for which he

have you been able to reach a verwas indicted, and, upon trial, found dict? (A general reply in the negguilty by verdict of a jury, which ative.) If the jury is irreconcilably fixed his punishment for the crime disagreed as to the questions of guilt charged at imprisonment of two

or innocence, it presents a different years in the penitentiary.

situation as when you are disagreed The appellant contends that he

as to penalty. No juror should ever did not receive a fair trial in the subscribe to a verdict that does not court below, and should be accorded

express his conscientious opinion as a reversal of the judgment of con- to what the verdict should be. This viction, because of error committed

is the sort of case which, after final by that court in the following par submission, requires the court to ticulars: (1) Misconduct of the keep the jury together and not percourt in entering alone the jury mit them to separate. Whether or room during the jury's deliberations

not the word 'Lock up' was used the leading to a verdict, and before they court does not recall.” had agreed upon a verdict, and, in

It does not appear from the recthe absence of the appellant and his ord, nor was it claimed by the trial counsel, advising or further in- court, that his visit to the jury structing them in respect to their room, or interview there with the duties as jurors in arriving at their jury, was by the request or invitaverdict. (2) In admitting incom- tion of the jury, or that either was petent evidence against the appel- known at the time to the appellant lant, and excluding competent evi- or his counsel, both of whom, addence offered in his behalf. (3) In mittedly, were absent when the visit refusing to grant the appellant a and interview occurred and during new trial upon the ground that the their continuance. It would seem verdict of the jury is unsupported sufficient to indicate as a reason for by and flagrantly against the evi- condemning the action of the trial dence.

judge in thus invading the privacy The several contentions above

of the jury while they were delibstated were embraced in the grounds erating as to their verdict, and, in filed in support of the appellant's the absence of the appellant and his motion for a new trial made in the counsel, advising or instructing

34 A.L.R.—7.

them in reference to their duties in It is patent that the provisions of

arriving at a ver- this section do not conflict with Trial-criminal law-effect of

dict, that he de- those of $ 183, supra, nor in any rejudge's visit to prived the appellant spect qualify the provision of that

of

an important section making imperative the presright guaranteed to every citizen of ence of the defendant during the the state indicted for a felony, by its trial, which must be observed, Constitution (Bill of Rights, $ 11), though he remain on bail; but, as $ which, among other things, de 183 contains no provision indicating clares: "In all criminal prosecu- in what manner the actual custody tions the accused has the right to be of the defendant shall be maintained heard by himself and counsel. or enforced during the trial, if or

dered by the court because of the In commenting on and applying failure of his bail to personally apthis provision of the Constitution, pear in court and consent that he rewe, in Allen v. Com. 86 Ky. 642, 6 S. main on bail, § 229 doubtless was W. 645, quoting with approval from enacted to supply that omission, by the opinion in the earlier case of providing, as it does, that, in case Temple v. Com. 14 Bush, 769, 29 the actual custody of the defendant Am. Rep. 442,—said of it: “The be required during the trial on acright to be heard by himself and count of the failure or refusal of his counsel

embraces the right bail to consent that he remain on to be present himself, and to have a bail, he "shall be committed to and reasonable opportunity to have his remain in the custody of the proper counsel present, also, at every step officer;" that is, the jailer or other in the progress of the trial, and to officer of the court charged by law deprive him of this right is a viola- with that duty. tion of that provision of the funda

The words “during the trial," apmental law.”

pearing in each of the sections suThe imperativeness of the re- pra, have in numerous cases decided quirement rendering necessary the by this court been held to embrace presence of the accused during the all stages of the trial, which, as detrial of a felony is also declared by clared, "begins with the swearing of the Criminal Code, $$ 183,229, the the jury and ends when the verd'ct first providing: “If the indictment is returned.” Willis v. Com. 85 Ky. be for a felony, the defendant must 68,2 S. W. 654; Allen v. Com. supra; be present, and shall remain in ac- Collier v. Com. 110 Ky. 516, 62 S. W. tual custody during the trial; unless 4; Temple v. Com. supra; Tye v. his bail appear personally in court, Com. 3 Ky. L. Rep. 59; Kokas v. and consent that he

remain Com. 194 Ky. 44, 237 S. W. 1090. on bail, in which case he shall be Also see Cooley, Const. Lim. p. 319. placed in actual custody when the There are other sections of the case is finally submitted to the jury. Criminal Code yet to be mentioned, If he escape from custody after the equally as mandatory as those altrial has commenced, the trial may ready considered, that have a direct either be stopped, or progress to a bearing on the conduct and duties of verdict, at the discretion of the com- the jury, the trial court's control of monwealth's attorney; but judg- and power over them, and also upon ment shall not be rendered until the the rights of the defendant when presence of the defendant is ob- and while on trial for a felony. One tained."

of the sections referred to is 244, Section 229, supra, begins and which provides: “On the trial of ends with the following brief decla- offenses which are or may be punration: “During the trial of an in- ished capitally the jurors, after they dictment for felony, the defendant are accepted, shall not be permitted shall be committed to and remain in to separate, but shall be kept togeththe custody of the proper officer." er, in charge of the proper officers. (200 Ky. 509, 255 8. W. 125.) On the trial of other felonies the defendant on the trial. And, while jurors, before the case is submitted § 249, supra, does not, in words, deto them, may be permitted to sep- clare that the presence of the dearate, in the discretion of the court, fendant at such a conference or but, after the case is submitted, they meeting between court and jury as shall be kept together in charge of is therein provided for shall be necan officer..

essary, his right to be then present Section 245 directs that, when the

,

cannot be affected by the failure of jury is required to be kept together, that section to give it recognition; it shall be in charge of officers sworn for, as previously remarked, this "to keep them) together, and to right of the defendant to be present, suffer no person to speak to, or com- and have his counsel present, during municate with, them on any subject the trial and at all stages thereof, is connected with the trial, and not to one guaranteed by the Constitution do so themselves.” By $ 246 it is and declared by $ 183, Crim. Code; provided: “The jury, whether per- therefore, its reiteration by § 249 mitted to separate or kept in charge was unnecessary. The uncontroof officers, must be admonished verted facts appearing of record by the court that it is their duty not clearly show not only that the meetto permit anyone to speak to, or ing and conference between the communicate with, them on any sub- court and jury complained of in this ject connected with the trial, and case took place in the jury room aftthat all attempts to do so should im- er its submission, in the absence of mediately be reported by them to the and without notice to counsel for the court, and that they should not con- appellant or the commonwealth, but verse among themselves on any sub- also that it neither resulted from, ject connected with the trial, nor nor was rendered necessary by, any form, nor express, any

express, any opinion "disagreement of the jury as to any thereon, until the cause be finally part of the evidence," desire on their submitted to them. This admoni- part to be “informed on a point of tion must be given or referred to by law," or any communication from the court at each adjournment.” them to the court. In view of the

If, after the submission of the showing made by the record, it is case to the jury, and during their de- manifest that in thus meeting, conliberations before reaching a ver- ferring with, and advising the jury dict, the necessity for a communica- with respect to their duties in the tion or conference between them and matter of arriving at a verdict, the the court should arise, the place and trial court disobeyed the mandatory manner of bringing jury and court provisions of the Constitution and together for the purposes of such Criminal Code, supra, and thereby conference or meeting are pre- deprived the appellant of a highly scribed by $ 249, which provides: important constitutional right. "After the jury retires for delibera- It is insisted, however, by counsel tion, if there be a disagreement be- for the commonwealth, that though tween them as to any part of the the trial court, in the matter of thus evidence, or if they desire to be in- entering the jury room and advising forined on a point of law, they must the jury as to their verdict, without require the officer [in whose care the consent and in the absence of they are] to conduct them into court. appellant and his counsel, may have Upon their being brought into court, committed error, the appellant was the information required must be not thereby prejudiced in any subgiven in the presence of, or after stantial right; hence, the error of notice to, the counsel of the parties." the court furnishes no ground for

The counsel here referred to are the reversal of the judgment. The the commonwealth or county attor- unsoundness of this contention lies ney representing the commonwealth in its unauthorized assumption that and the attorney representing the the jury were in no wise influenced, wor their verdict affected, by what if any, light upon the meaning of was said to them by the court. the language immediately before em

In considering what took place ployed. between the trial court and jury in The closing words of the trial the latter's room, it will be but fair judge's statement to the jury, subto the court and just to the appellant stantially informing them that they to confine ourselves to the statement would have to be kept together and written by the former in the bill of not permitted to separate until they exceptions as to what there oc- found and returned a verdict (to curred, and such inferences or con- which, he admits, he may have added clusions as may reasonably be de- the words “locked up,” after the duced therefrom. It is fairly infer- words "kept together”), could have able from the statement that the been but a repetition, in substance, trial judge's visit to the jury room of what it will be presumed he, in was not in response to a request the performance of his official duty, or communication received by him said to them in open court when the from the jury, and apparent from case was submitted; hence, the rethe inquiry made by him of the jury minder to them in the jury room was upon entering the room that the ob- inopportune and unnecessary. Beject of his visit was to ascertain sides, connected as it was with the from them whether they had agreed unsolicited and, to the jury, unexupon a verdict, and, if they had not, pected visit of the trial judge to to assist and hasten them in doing their room, and the other statements so. When informed by the jury that made by him to they had not agreed upon a verdict, them while there, Appeal-crimi- . the trial judge seemed to assume, its probable effect nal law-prethough without information from upon the jury was prejudice from

visit to jury them authorizing it, that the jury to shorten

their room. were not disagreeing as to the ap- deliberations, and pellant's guilt, but as to the punish- thereby so hasten the verdict as to ment he should receive. Whereupon prevent them from giving it the he proceeded to orally instruct or maturer consideration it otherwise advise them in respect to their du

would or might have received. ties in arriving at a verdict, as set

As it appears from the record that forth in his statement appearing in

the trial judge's visit to and interthe record, the language of which is

view with the jury in their room

occurred within, or not later than, so ambiguous as to render its mean

an hour after the submission to them ing confusing. This is notably true

of the case, it is patent that their of that part of the statement which,

deliberations looking to a verdict in attempting to point out the dif

had not then extended beyond an ference in the situation presented hour; and, as this was not an unwhere the jury "are disagreed as to

reasonable or unusual time for a the question of guilt or innocence” jury to consume in considering, aftand that presented where they “are er its submission to them, a case indisagreed as to penalty,” failed to volving a charge of felony, without define such difference, or to advise arriving at a verdict, no reason is the jury as to the course of conduct apparent for the apprehension of the they might properly pursue in either trial court that they were so dissituation, in order to remove the dis- agreed as to make a verdict improbagreement and arrive at a verdict. able, or would unnecessarily conThe subsequent sentence, declaring sume time in further efforts to agree what in every case should govern the upon a verdict, that should be devotjuror in determining whether he willed by them to the consideration of subscribe or agree to a verdict, while other cases awaiting trial by jury. correct in the abstract, threw little, It would seem, therefore, that there (200 Ky. 509, 255 8. W. 125.) was no justifiable cause for the im- felony cannot be tried during his patience of the trial judge for an im- absence from the court room, and, mediate verdict, which evidently when any step is taken during the manifested itself to the jury during trial in the absence of the prisoner, his conference with them in their the record must show affirmatively room.

that he could in no wise have been It could not have been contemplat prejudiced by it, else this court will ed by the makers of the Constitution reverse the judgment. The evidence that the question as to whether a in this case is so plain as to the guilt defendant on trial for a felony has of the accused, and the enormity of been prejudiced in a substantial the offense, that no slighter punishright by the failure of the trial ment could have been inflicted, and court to obey the mandatory provi- we are satisfied the ends of justice sion of that instrument, conferring require that the judgment should be such right and guaranteeing its en- affirmed." The principal reason adjoyment, should be left to conjecture vanced by the above excerpt from or speculation. The rule declared in the opinion, for the court's concluthis jurisdiction for determining sion that the defendant could not

that question makes have been prejudiced in any sub-violation of

the deprivation of stantial right by the error of the constitutional rights-preju

the constitutional trial court in question in that case, diee.

right prima facie is wholly inapplicable to the instant prejudicial. This rule is recognized case, in which the evidence found in in Meece v. Com. 78 Ky. 586, relied the record is too conflicting to enable on by counsel for the commonwealth. us to say that it established the apIn that case the defendant, though pellant's guilt of the offense charged, charged with murder, was convicted with the unerring certainty that of voluntary manslaughter, the pun- seemed apparent to the court in the ishment inflicted being imprison- case supra. Although it appears ment for twenty-one years in the from the opinion, supra, that the penitentiary. One of the grounds defendant's counsel was

was present urged for the reversal of the judg- when the trial court made the addiment of conviction was alleged error tion to the instructions, and that he of the trial court, committed after made no objection thereto, it is nothe submission of the case to the ju- where intimated in the opinion that ry, in adding to an instruction by in- his presence obviated the necessity terlineation in the absence of the de- for the defendant's presence, or that fendant, but in the presence of his it authorized the court to make the counsel, certain words properly ex- addition to the instructions in the planatory of its meaning, which was latter's absence. It, however, reitdone at the request and in the pres- erates the necessity for the defendence of the jury, following their re- ant's presence at every step taken in turn to the court room. Although

Although his case during the trial, and gives it is conceded in the opinion of this emphasis to the fact that the taking court that "the presence of the ac- of any step during the trial in his cused, when instructions are given absence will compel the reversal of or modified, is essential to the ends the judgment, unless it be affirmaof justice," and that the action of tively shown by the record that he the trial court in making the addi- could not have been prejudiced by it. tion to the instructions in the ab- In Kokas v. Com. 194 Ky. 44, 237 sence of the defendant was error, it S. W. 1090, there was a reversal of nevertheless affirmed the judgment the judgment of conviction because of that court for the reasons stated of error committed by the trial in the concluding part of the last court, in the absence of the defendparagraph of the opinion: “One ant, after the submission of the case charged with the commission of a and while the jury were deliberating

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