
    Case 102 — INDICTMENT FOR HOMICIDE
    November 26.
    Wiggins v. Commonwealth.
    APPEAL PROM MUHLENBERG CIRCUIT COURT.
    1. Criminal Law — Continuance—Indictment Term — Construction oe Section 189, Criminal Code. — Where there is nothing in an indictment for homicide showing that the offense charged is the same as that charged in a former indictment which had been dismissed for resubmission, the new indictment will be treated as an original one and. under section 189 of the Criminal Code the Commonwealth’s Attorney will not be entitled to force the defendant into trial without admitting that the facts which the defendant’s affidavit for a continuance shows could be proved by absent witnesses are true.
    2. Formation oe Jury — Right oe Challenge — When to be Exercised. — Each party is required .under section 215 of the Criminal Code to exhaust its challenges to each juror before the other begins. Where, therefore, in filling the panel a. juror has been accepted by the Commonwealth and not challenged by the defendant it is not error to refuse to permit the defendant to challenge such juror after the panel has been filled.
    JOHNSON & WICKLIFFE eor appellant.
    1. It was error to refuse the defendant a continuance. Crim. Code, sec. 189; Hardesty v. Com., 88 Ky., 537; Murphy v. Com., 92 .Ky., 485.
    2. It was error to refuse the defendant the right, of peremptory challenge as to jurors who had been passed silently in filling the panel.
    3. The juror, Divine, was incompetent.
    W. S. TAYLOR, Attorney-General, and M. H. THATCHER, bob APPELLEE.
    1. The refusal to continue the case was proper. Crim. Code, sec. 189 as amended by the act of 1886.
    2. Defendant. had no right to challenge after the panel had been filled, jurors who had been silently passed in filling the panel. Crim. Code, sec. 202. Besides, error of the court in this regard is not reviewable. Same, sec. 281; Morgan v. Com., 14 Bush, 106; Terrell v. Com.,-13 Bush, 246; Rutherford v. Com., Same, 608.
    3. The decision of the trial court in overruling a motion for a. new trial is not subject to exception. Redmon v. Com., 82 Ky., 333.
    4. There was evidence warranting the conviction and where there is any evidence this court can not reverse. Henry v. Com., 20 Ky. Law Rep., 543.
   JUDGE DuRELLE

delivered the opinion OE the coubt.

The appellant was indicted for the murder of John Bruce in January, 1897, and the case continued from term to term, until September 6, 1898, when, upon motion of the Commonwealth, the indictment was dismissed, “and this prosecution is remanded to the present grand jury of Muhlenberg county.” On the same day another indictment was returned by the grand jury, accusing appellant of the murder of N. If. Bruce. On the same day the case was called, the Commonwealth announced ready for trial, and appellant moved for a continuance upon the ground of the absence of a material witness, who, it was claimed, would show threats by deceased against appellant, and who had been recognized to appear upon the trial of the first indictment at that term. The court permitted the affidavit to be read upon the hearing as a deposition, but refused to require the Commonwealth to admit the truth of the averments therein contained.

By section 189 of - the Criminal Code it is provided that “when the ground of application for a continuance is the absence of a material witness, and the defendant mates affidavit as to the facts which such witness would prove, the continuance shall be granted, unless the attorney for the Commonwealth admit upon the trial that the facts are true.” By an amendment to section 189, adopted May 15, 1886, it was provided that, upon such application, “the attorney for the Commonwealth shall not be compelled, in order to prevent the continuance, to admit the truth of the matter which it is alleged in the affidavit such absent witness or witnesses would prove, but only that such witness or witnesses would, if present, testify as alleged in the affidavit” — with a further provision that-.the Commonwealth is permitted to controvert the statements of such affidavits by other evidence, etc. It is further provided that the provisions of the amendatory section shall not apply to a motion for continuance made at the same term at which the indictment in the action is found.

There seems to be nothing in this record to show that the hilling of N. K. Bruce, charged in the second indictment, was the same offense charged in the former indictment; and, this being so, we are constrained to the conclusion that section 189 of the Code applies, and not the amendatory act, for the reason that the motion for the continuance was made at the same term at which the indictment in the action was found.

Another objection is that, after a juror had been accepted by the Commonwealth and not challenged by the defense, the defense was not permitted, -when the panel was filled, to peremptorily challenge such juror. This seems to us to be specifically provided for by Gr. Code, section 215, which requires that each party must exhaust his challenges to each juror before the other begins; and this has been construed in Munday v. Com., 81 Ky. 237,, where, in an opinion by Chief -Justice Lewis, it was held that “the defendant, as well as the Commonwealth, is therefore required to exhaust his challenges to each juror of a panel when presented to be passed upon.” This ruling was therefore not' error. The judgment is reversed, and cause remanded, with directions to award appellant a new filial, and for further proceedings consistent herewith.  