Acree v. Commonwealth

• Decision Date: 25 March 1932
• Citation: 243 Ky. 216
• Parties: Acree v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

243 Ky. 216

Acree v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 25, 1932.

1. Conspiracy. — Confederating together to do felonious act is crime, whether it is consummated or not (Ky. Stats., sec. 1241a-1).

2. Indictment and Information. — Indictment must charge in its accusatory part offense involved, and descriptive part must state facts which, if established, constitute offense charged (Ky. Stats., sec. 1241a-1).

3. Indictment and Information. — Indictment in prosecution for conspiring to break and enter storehouse held defective (Ky. Stats., secs. 1164, 1241a-1, 1256).

Indictment was defective, since the accusatory part thereof charged defendant and associates with crime of entering into conspiracy to break and enter into storehouse of another, while the descriptive part thereof charged that defendant and associates pursuant to conspiracy did feloniously break and enter storehouse with intent to steal.

4. Criminal Law. — In prosecution for conspiracy to break and enter storehouse, possession of stolen property in defendant's trunk held sufficient corroboration of accomplice (Ky. Stats., secs. 1241a-1, 1256).

5. Criminal Law. — Commonwealth's failure to produce valid warrant under which search was made rendered incompetent testimony disclosing result of search.

6. Criminal Law. — As basis for introducing testimony disclosing result of search, issuance and contents of lost warrant may be established by parol.

7. Criminal Law. — Where defendant's premises are searched under valid warrant and goods mentioned are found, together with other goods, evidence that other goods were stolen is admissible.

In such case, it is competent to show that goods other than those mentioned in search warrants were stolen property, for the purpose of showing the identity of the defendant with, or his motive or guilty knowledge of, the crime charged in the indictment for entering into conspiracy to break and enter storehouse of another.

8. Criminal Law. — In prosecution for conspiring to break and enter storehouse, court should instruct that evidence relating to breaking and entering storehouse of prosecuting witness and of third party on other occasions could not be considered except to show defendant's identity with, or motive and knowledge of, crime charged.

9. Witnesses. — Where defendant testified, evidence as to his general reputation for veracity held competent.

10. Criminal Law. — On request, court should admonish jury of purpose for which evidence regarding defendant's general reputation as to veracity was admitted.

11. Criminal Law. — Where record fails to show request to admonish jury regarding purpose of admitting evidence competent only for particular purpose, accused cannot take advantage of such error on appeal.

12. Criminal Law. — Defendant should be tried for only one offense at a time.

13. Criminal Law. — Where commonwealth introduces evidence concerning more than one offense and makes no formal election as to which it will rely on for conviction, law elects act concerning which evidence is first introduced.

Appeal from Graves Circuit Court.

CROSSLAND & CROSSLAND for appellant.

BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

Orie Acree and three others were charged in an indictment with the crime of entering into a conspiracy to break and enter the storehouse of another.

Orie Acree requested and was granted a separate trial. He demurred to the indictment and the court overruled his demurrer. In the accusatory part of the indictment the appellant and his associates were charged with "the crime of entering into a conspiracy to break and enter into the storehouse of Will Brown." The descriptive portion of the indictment charged that the defendant and his associates named in the indictment, in pursuance to a conspiracy, did feloniously break and enter the storehouse of Will Brown, a depository of goods, with the intent to steal articles of value. It is apparent that the offense named in the accusatory portion of the indictment is a misdemeanor, while that in the discriptive part is a felony. To break and enter a storehouse without a felonious intent is merely a trespass. Section 1256, Ky. Stats.

At common law a conspiracy formed to do an unlawful act or a lawful act in an unlawful manner without an overt act by the conspirators, or any of them, to carry into execution the object of the conspiracy, the conspiracy alone, was a misdemeanor. Where the conspiracy was formed for the purpose of committing a misdemeanor, and the purpose for which it was formed was consummated, the misdemeanor committed when it was formed did not merge with the misdemeanor committed in executing its purpose, and a prosecution for the one was no bar to a prosecution for the other. Commonwealth v. Barnett, 196 Ky. 731, 245 S.W. 874; Myers v. Com., 210 Ky. 373, 275 S.W. 883; Commonwealth v. Ward, 92 Ky. 158, 17 S.W. 283, 13 Ky. Law Rep. 422; Commonwealth v. Walters, 206 Ky. 162, 266 S.W. 1066. If a conspiracy was formed to commit a felony, and the felony was committed in pursuance to and in execution of the conspiracy and while the same existed, by the conspirators or any of them, the misdemeanor committed by the forming of the conspiracy merged with the felony. Wait v. Com., 113 Ky. 821, 69 S.W. 697, 24 Ky. Law Rep. 604; Commonwealth v. Blackburn, 1 Duv. 4; Commonwealth v. Harper, 195 Ky. 843, 243 S.W. 1053; Commonwealth v. Barnett, supra.

Section 1241a-1, Ky. Statutes, creates and prescribes punishment for the crime of confederating and banding together of two or more persons to do a felonious act, whether it is consummated or not. Eubank v. Com., 210 Ky. 150, 275 S.W. 630; Phelps v. Com., 209 Ky. 318 272 S.W. 743; Roark v. Com., 13 Ky. Law Rep. 397; Carr v. Com., 25 S.W. 886, 15 Ky. Law Rep. 826; Commonwealth v. Morton, 140 Ky. 628, 131 S.W. 506. Ann. Cas. 1912B, 454; Weisiger v. Com., 215 Ky. 172, 284 S.W. 1039; Riggsby v. Com., 232 Ky. 226, 22 S.W. (2d) 624; Diamond v. Com., 237 Ky. 374, 35 S.W. (2d) 554.

Section 1164 creates and fixes the punishment of the crime of feloniously breaking and entering into a storehouse, a depository of goods, wares, and merchandise with the intent to steal articles of value, which may be committed by two or more persons as principals, or as aiders and abettors, or in pursuance to and in the execution of a confederation, conspiracy, or banding together. Ray v. Com., 230 Ky. 656, 20 S.W. (2d) 484, 66 A.L.R. 1297; Canada v. Com., 242 Ky. 71, 45 S.W. (2d) 834.

If the conspiracy is formed to commit the crime therein denounced, whether the act is consummated or not, the conspirators may be indicted and convicted under 1241a-1. Riggsby v. Com., 232 Ky. 226, 22 S.W. (2d) 624; Diamond v. Com., 237 Ky. 374, 35 S.W. (2d) 554; Eubank v. Com., 210 Ky. 150, 275 S.W. 630; Weisiger v. Com., supra. In Deaton v. Com., 220 Ky. 343, 295 S.W. 167 and Gregory v. Com., 226 Ky. 617, 11 S.W. (2d) 432, the rule was stated that it was essential that the accusatory and descriptive parts of an indictment cover the same offense.

The indictment must charge in its accusatory part the public offense for which it is intended to prosecute the accused, and in the descriptive part must be stated the facts, which if established by proof, constitute the offense charged. Commonwealth v. Tobin, 140 Ky. 261, 130 S.W. 1116. This rule was approved in Commonwealth v. Castleman, 8 Ky. Law Rep. 608; Brooks v. Com., 98 Ky. 143, 32 S.W. 403, 17 Ky. Law Rep. 698; Bennett v. Com., 150 Ky. 604, 150 S.W. 806, 43 L.R.A. (N.S.) 419; Elliott v. Com., 194 Ky. 576, 240 S.W. 61; Forman v. Com., 195 Ky. 758, 243 S.W. 1043; and Commonwealth v. Phoenix Amusement Co., 241 Ky. 678, 44 S.W. (2d) 830; Phelps v. Com., 209 Ky. 318, 272 S.W. 743.

Under the authority of the cases supra, an indictment charging a conspiracy under section 1241a-1 to constitute the offense created by section 1164, it is essential and required that both the accusatory and descriptive parts of the indictment must name and describe the same offense. It is apparent that it is our conclusion that the court erred in overruling the demurrer to the indictment which can only be corrected by a reference to the grand jury and the return of a new indictment.

Inasmuch as another trial may be had, we deem it our duty to dispose of other questions raised on this appeal.

The facts presented are as follows:

Will Brown was the owner of a storehouse and a stock of goods at Dublin, Graves county, Kentucky. He closed the store on Saturday night and did not return to it until Monday morning, the 9th day of February, 1931. On Monday morning he observed that the window which opened on a balcony upstairs had been broken. The window was pushed in, the sash torn, and the store had been entered. On entering, he discovered there had been taken therefrom pocketknives, two or three cartons of Lucky Strikes, Chesterfield, and Camel cigarettes, pipes, candy, a flashlight, and a tire tester. On Monday morning, the 25th day of February, on returning to his store, he again discovered that it had been broken and entered, and hosiery and pocketknives had been taken therefrom.

Mr. Keeling owned a store building situated about twenty-five yards from Brown's. His store was broken into about the same time of the first breaking of Brown's and watches were taken therefrom. They were dollar watches, branded, "Good Morning."

During Christmas week of 1930, Veal was principal of the high school at Wingo, Ky. The lock on his desk was broken and several books and a bunch of keys were taken therefrom. At the time Brown's and Keeling's stores were broken into, Orie Acree was attending school at Murray, Ky., and boarding at the home of W.T. Chester. At the time Veal's desk was broken and the books and keys were taken, Acree was attending school at Wingo, boarding at the home of his father,...