Tucker v. Commonwealth

249 S.W. 767, 198 Ky. 607, 1923 Ky. LEXIS 502

• Court: Court of Appeals of Kentucky
• Decided: April 13, 1923
• Status: Published

Opinion

Opinion op the Court by

Turner, Commissioner

Affirming.

Appellant was convicted of selling spirituous liquors, and lias appealed.

The transcript shows only eleven jurors sat in the case, and the contention is made that defendant was entitled to a full panel and to have twelve jurors sit in his case, although the record fails to disclose that he entered any objection whatsoever in the lower court to the trial by the eleven jurors, or that he offered any such ground for a new trial in his motion and grounds.

Under this state of the record, in a misdemeanor case it will be assumed that the appellant agreed to the trial by the eleven jurors.

Counsel mistakenly asserts in his brief that there is nothing to show the jury was sworn, for it is expressly stated in an order of the court that the jury was “empanelled and sworn to try the issue.”

It is likewise asserted that the Commonwealth failed to show the offense was committed in McCreary county; in this counsel is likewise mistaken, for it is shown in the evidence of the prosecuting witness, Young, in answer to a question whether he had bought whiskey from defendant “Before you were before the grand jury and within twelve months before that time and in this county, ’ ’ and the witness promptly answered that he had.

It is likewise contended that defendant was entitled to a peremptory instruction because there was no corroboration of the testimony of the prosecuting witness, he at the time being, as asserted, an accomplice of the defendant. An examination of the evidence fails to show any intimation whatever that the witness and the defendant had had any previous dealings whatsoever with reference to this whiskey, or that they had manufactured the same together, or had transported the same together or in connection with each other, or that they had any joint dealings of any kind or nature touching the ownership, transportation or sale of this whiskey. • Consequently, there is no semblance of foundation for the claim, that the witness was an accomplice.

Judgment affirmed.