|Parker v. Commonwealth|
|182 S.W.2d 653|
|Sept. 29, 1944.|
|ACTION: Reversed with directions.|
Appeal from Circuit Court, Clinton County; J. S. Sandusky, Judge.
Frank Parker was convicted of voluntary manslaughter, and he appeals.
The appellant, Frank Parker, was indicted by the grand jury of the Clinton circuit court, charged with the willful murder of Jasper Dickerson, by hitting and striking him upon the head with a mattock, a deadly weapon, from which he did die within a day or so thereafter.
Upon trial on the charge, the appellant was convicted of the offense of voluntary manslaughter and sentenced to confinement in the penitentiary for a period of eleven years.
From that judgment of conviction this appeal is prosecuted, seeking a reversal on two grounds:
(1) That the court erred in overruling the defendant's motion to quash the indictment and
(2) because the court erred in overruling the defendant's motion for a continuance of the cause.
Counsel for appellant very earnestly contend that appellant's motion to quash the indictment, made upon his arraignment upon the call of the case for trial and before other plea was entered, should have been sustained for the reason that the indictment, accusing appellant of the murder of Dickerson, was not issued by a 'statutory grand jury,' in that it was not selected by the jury commissioners, prescribing the manner and method of their selection.
Section 2241, Kentucky Statutes (29.070 K.R.S.), prescribes as the proper method and manner to be followed in the selection and formation of a grand jury, that:
'The jury commissioners shall take the last returned tax commissioner's book for the county and from it shall carefully select from the intelligent, sober, discreet and impartial citizens, resident housekeepers in different portions of the county, over twenty-one years of age, the following number of names of such persons. A grand jury shall consist of twelve persons, each of whom must be a citizen and a housekeeper of the county in which he is called to serve and over the age of twenty-one years. * * * The fact that a person not qualified served on a grand jury shall not be cause for setting aside indictments found by such grand jury.'
The appellant, in the instant case, in harmony with these provisions of the code, did, upon his arraignment, make timely motion to set aside and quash the indictment returned against him on the ground therein stated, that there had been a substantial error in the formation of the grand jury; that it was improperly and illegally formed, in that two of the grand jurors, to-wit, Verna Blair and Juliet Perkins, who returned the indictment against appellant, were not selected by the jury commissioners in compliance with but in direct violation of the method prescribed by the above section, inasmuch as their names were put in the wheel notwithstanding they did not appear upon the last returned tax commissioner's book.
The commonwealth did not controvert the allegation or offer any contradictory proof that the names of the two jurors, Blair and Perkins, did appear on the last returned tax commissioner's book.
This same question here raised and presented by the appellant's motion, timely and properly made, to quash the indictment, has several times been presented and decided by this court.
This court has very clearly, held that the provisions and requirements are not merely directory but are of mandatory force in prescribing the one legal manner to be followed by the jury commission in its selection of grand and petit jurors, and must be substantially complied with, and that such compliance is mandatory, even though noncompliance may be waived by a party through failure to make proper objection at the proper time.
We are therefore led to conclude, in view of and upon the authority of the decisions of this court upon the question here presented, that appellant was indicted by an illegally impaneled grand jury and consequently, in contemplation of law, there was no grand jury and hence no indictment upon which a legal conviction could be predicated.
Therefore the judgment is reversed with directions to set it aside and to sustain appellant's motion to quash the indictment and to resubmit it to another grand jury properly empaneled.
PARKER v. COMMONWEALTH
182 S.W.2d 653, 298 Ky. 204
Last Update Tuesday, 18-Dec-2012 01:31:46 EST
Copyright © 2015 by the KYGenWeb Team. All
rights reserved. Copyright of submitted items
belongs to those responsible for their authorship or
creation unless otherwise assigned.