Com. v. Denny

• Decision Date: 17 October 1930
• Citation: 31 S.W.2d 940,235 Ky. 588
• Parties: COMMONWEALTH v. DENNY.
• Court: Kentucky Court of Appeals

31 S.W.2d 940

235 Ky. 588

COMMONWEALTH v. DENNY.

Court of Appeals of Kentucky

October 17, 1930

Appeal from Circuit Court, Todd County.

C. A Denny was indicted for embracery. From judgment entered on an order sustaining a demurrer to the indictment, the Commonwealth appeals.

Affirmed.

J. W Cammack, Atty. Gen., and Howard Black, of Frankfort, for the Commonwealth.

Petrie & Standard, of Elkton, and C. A. Denny, of Greenville, for appellee.

THOMAS C.J.

The grand jury of Todd county returned an indictment against the appellant and defendant therein, C. A. Denny, which, omitting caption and signature, was and is in these words: "The Grand Jury of the County of Todd in the name and authority of the Commonwealth of Kentucky, accuse C. A. Denny of the offense of wilfully, unlawfully, knowingly and designedly, by persuasion, entreaty and promise of reward to improperly and corruptly influence and so attempt to influence a male person of Todd County, more than 21 years of age, subject to Jury services, in said Todd County, to improperly and corruptly purchase and influence and control the opinion, decision verdict and award in the prosecution and determination of the trial of a person then under indictment, charged with a felony in the Todd Circuit Court and to be thereafter tried upon said indictment in said Court, committed as follows, to-wit: The said C. A. Denny, heretofore, within one year before the finding of this indictment, to-wit: On the 28th day of March, A. D. 1930, in the county aforesaid, did unlawfully, wilfully, by means of persuasion, entreaty and promise of reward, by the payment of money to one J. L. Driskill for the purpose of improperly and corruptly influencing the decision and verdict of the said Driskill, if called as a juror in the trial of the case of the Commonwealth of Kentucky v. R. B. Grady, which said cause was then pending in the Todd Circuit Court and the said Driskill being a citizen, resident, housekeeper of Todd County, more than 21 years of age, eligible and qualified for Jury service in said Court and the said defendant Denny, did wilfully, designedly and corruptly offer to pay to the said Driskill the sum of one Hundred ($100.00) Dollars, if he, the said Driskill, was called as a Juror in said case of Commonwealth v. Grady. If he, the said Driskill, would qualify himself to sit as a Juror in said case and after having qualified, would hang or cause said jury to hang, and fail to return a verdict in said cause of Commonwealth v. the said Grady, the said R. B. Grady being at the time charged under the indictment in the Todd Circuit Court, with having slain and murdered one Zack Boone, and the said Denny was at the time, in the employ of the said Grady in a legal capacity, defending the said Grady; the said Denny at the time being a regularly licensed, practicing attorney engaged in the practice of law in the County of Todd and the State of Kentucky and elsewhere. That said offer was made for the purpose of controlling the opinion and verdict of the said Driskill, if called upon as a Juror, and for the purpose of thwarting and hampering and empealing (evidently 'impairing') and destroying the orderly administration of justice and to bring the law, the courts and its officers into disrepute and to prevent the unbiased expression and verdict of the jury in the trial of said cause and that the said J. L. Driskill, in the selection and making up of a jury for the trial of said Commonwealth v. R. B. Grady, was called and summoned as a juror and qualified to the extent of his citizenship, his age, his residence and his absence of any knowledge of facts or circumstances surrounding the commission of the crime charged against the said Grady, and of having expressed no opinion as to the guilt or innocence of the said Grady of the crime charged and, at the time said offer and reward was made by the said Denny, he well knew of the charge contained in the indictment against said Grady, of the approaching term of Court and that the said Driskill was a citizen, resident and housekeeper of Todd County and qualified for jury service in said County."

Defendant's demurrer filed thereto was sustained, and, insisting that it was error to do so, the commonwealth objected and excepted thereto and prosecutes this appeal. The defects of the indictment urged against its sufficiency, both in the court below and here, were and are: (1) That its descriptive part does not contain facts sufficient to constitute a public offense, and especially that of embracery, which was the label of the indictment on its back, but no such label appearing in its body or anywhere on its face, and (2) that if mistaken as to defect (1), then the accusatory part of the indictment describes no offense, either at common law or of statutory creation, and that the demurrer thereto should have been sustained under the doctrine announced in the cases of Commonwealth v. Tupman, 30 S.W. 661, 17 Ky. Law Rep. 217; ...