Opinion
November 7, 1941.
Appeal from Perry Circuit Court.
Roy Helm, Judge.
Olney B. Owen for appellant.
Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
Reversing.
The appellant, Courtney Noble, was convicted in the Perry Circuit Court on an indictment charging him with armed robbery and his punishment was fixed at confinement in the penitentiary for 21 years. The only grounds upon which he seeks to reverse the judgment are: 1. That the court erred in overruling his motion to quash the indictment; 2. in refusing to sustain his challenge to the regular panel. It is urged by appellant that the wheel from which both the grand and the petit juries were drawn was not filled as required by statute.
Appellant was indicted at the September 1940 term and tried at the following November term, therefore the grand jury indicting him and the petit jury trying him were drawn from the same list of names contained in the jury wheel which was condemned in South v. Com., 287 Ky. 99, 152 S.W.2d 295, as having been filled by the jury commissioners in violation of Section 2241 et seq., Kentucky Statutes. On authority of the South case the judgment in Wilson v. Com., 287 Ky. 286, 152 S.W.2d 952, was reversed because the grand jury which indicted Wilson and the petit jury which tried him were drawn from the same list of names with which the jury commissioners had improperly filled the wheel from which the grand and petit juries officiating in the South case were drawn. The Assistant Attorney General who briefed the instant case concedes the South and Wilson cases are controlling here and that the judgment should be reversed.
The judgment is reversed with directions to grant appellant a new trial, and for proceedings consistent with this opinion.