Gay v. Commonwealth

VAN SANT, Commissioner. Upon conviction of manslaughter, appellant was sentenced to serve five years and one day in the State Reformatory. For reversal of the judgment, he contends that the Court erred in overruling his motion for a new trial (1) upon the ground of newly discovered evidence, and (2) upon the ground that one of the jurors separated from the remaining members of the panel during the trial. Since we have concluded the judgment must be reversed because of the separation of the jury, it is unnecessary for us to discuss the alleged error in respect to newly discovered evidence. In the course of the trial and while the Commonwealth's Attorney, the defense attorney, and the trial Judge were in consultation concerning an interlocutory motion, one of the jurors departed from the courtroom. A deputy sheriff discovered his absence and after speaking to another member of the panel commenced a search for the absent juror, and a short time thereafter escorted him back to the jury box. The attorney for the defense did not learn of the separation until after the trial was over; he then incorporated these facts as a ground for a new trial, and in support thereof filed the affidavit of a bystander. The affidavit did not state the length of time the juror was separated from the remainder of the panel, but the Commonwealth's Attorney did not file a counter-affidavit, or an affidavit explaining or attempting to show that the juror had not been communicated with, or facts from which such an inference could be drawn.