Deaton v. Com.

• Decision Date: 03 June 1927
• Citation: 295 S.W. 167,220 Ky. 343
• Parties: DEATON ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

295 S.W. 167

220 Ky. 343

DEATON ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 3, 1927

Appeal from Circuit Court, Perry County.

Matt Deaton and another were convicted of an offense, either under Ky. St.§ 1223, or under section 1241a1, and they appeal. Reversed, with directions.

Saufley & Ward, of Hazard, for appellants.

F. E Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

The appellants and defendants below, Deaton and Boggs, were convicted in the Perry circuit court of either the statutory crime denounced by section 1223 or that denounced by section 1241a1 of the Kentucky Statutes, but of which one they were accused and convicted cannot be ascertained from the indictment, since its language in the description of the offense, of which defendants were accused, is broad enough to include the one denounced by either of those sections. Their punishment was fixed at confinement in the penitentiary for one year each, and, their motions for a new trial having been overruled, they prosecute this appeal, urging as grounds for reversal (1) that their demurrer filed to the indictment should have been sustained, and (2) that at the times they were indicted and tried there was no legal term of the Perry circuit court, and their motions to quash the indictment made before the trial, and to set aside the verdict against them, made after the trial, should have been sustained on the ground that the entire proceedings against them were void because at no step in the prosecution was there a legal term of the Perry circuit court in session. The two grounds will be disposed of in the order named.

1. The accusatory language of the indictment says:

"The grand jury of Perry county, in the name and by the authority of the commonwealth of Kentucky, accuse Matt Deaton and James Boggs of the crime of confederating, committed in the manner and form as follows, to wit:"

The immediately following description charges facts that would authorize a conviction under either one of the two sections of the Statutes, supra, but it is not necessary for us to determine whether the language of the indictment that is not common to both sections would be sufficient to render it demurrable, or whether such language could be treated as surplusage and the indictment held good for whichever offense the testimony established, provided it was good in other respects. We will therefore dispose of the case without determining that question.

Section 124 of the Criminal Code of Practice says:

"The indictment must be direct and certain, as regards * * * the offense charged." Subsection 2 of section 122 of the same Code prescribes how the indictment shall describe the offense of which defendant is accused, by saying that:

"The indictment must contain * * * a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case."

The two sections therefore should be read together, and they mandatorily require that an indictment "must be direct and certain" as to "the offense charged" (section 124), and then it must contain "a statement of the acts constituting the offense," etc. The first requirement is contained in what we have heretofore held to be the accusatory part of the indictment, which is that part where the offense is named, and the second requirement should appear in that part of the indictment designated as its descriptive part, and we have uniformly held that unless the indictment contained the required certainty prescribed by both of the sections, supra, it would be fatally defective. In other words, a good statement of the offense in the descriptive part of the indictment will not supply the failure to name the offense in the accusatory part of the indictment, and, vice versa, a correct naming of the offense in the accusatory part of the indictment will not supply a defective statement of the acts constituting the offense in its descriptive part.

The exact question was before us in the comparatively recent case of Elliott v. Commonwealth, 194 Ky. 576, 240 S.W 61, and in that opinion our above interpretation of the two sections of the Criminal Code, supra, was indorsed as the true rule. In that opinion prior cases from this court were cited and extracts from those former opinions to the same effect were inserted with approval. Some of such prior cases were Brooks v. Commonwealth, 98 Ky. 143, 32 S.W. 403, 17 Ky. Law Rep. 698, Commonwealth v. Reynolds, 4 Ky. Law Rep. 623, Commonwealth v. Castlemen, 8 Ky. Law Rep....