Acree v. Commonwealth

CourtCourt of Appeals of Kentucky
Writing for the CourtRICHARDSON, J.
Citation47 S.W.2d 1051,242 Ky. 216
Decision Date25 March 1932
PartiesACREE v. COMMONWEALTH.

47 S.W.2d 1051

242 Ky. 216

ACREE
v.
COMMONWEALTH.

Court of Appeals of Kentucky

March 25, 1932


Appeal from Circuit Court, Graves County.

Orie Acree was convicted of crime of entering into a conspiracy to break and enter the storehouse of another, and he appeals.

Reversed, with directions. [47 S.W.2d 1052]

Crossland & Crossland, of Paducah, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty. Gen., for the Commonwealth.

RICHARDSON, J.

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 descriptive part is a felony. To break and enter a storehouse without a felonious intent is merely a trespass. Section 1256, Ky. Stat.

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 principles, or as aiders and abettors, or in pursuance [47 S.W.2d 1053] 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 section 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, and indictment charging a conspiracy under section 1241a-1 to commit 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 therein at Dublin, Graves county, Ky. 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,...

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13 practice notes
  • State v. McMilliam, No. 291
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 18, 1956
    ...made under conditions requiring the issuance of a search warrant, this legal foundation must be laid. Acree v. Commonwealth, 243 Ky. 216, 47 S.W.2d 1051; Eaves v. Commonwealth, 241 Ky. 140, 43 S.E.2d 528; Conley v. Commonwealth, 230 Ky. 391, 20 S.W.2d 75; Wilson v. Commonwealth, 228 Ky. 517......
  • Miller v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • April 25, 1933
    ...descriptive part, it must state the facts which, if established by the proof, constitute the offense charged. Acree v. Com., 243 Ky. 216, 47 S.W.2d 1051, and cases cited. Section 1241a-1 creating the offense of confederating or banding together, does not give it a name, but merely describes......
  • Alsbrook v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • May 17, 1932
    ...offense created by the statute is the confederating, or banding together, to intimidate, injure, and disturb (Acree v. Com., 243 Ky. 216, 47 S.W.2d 1051), and it is not necessary to instruct on assault and battery, although violence may have been offered in the course of the alleged conspir......
  • Barnett v. Com.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 24, 1961
    ...in the absence of such a request by appellant. Renaker v. Commonwealth, 172 Ky. 714, 189 S.W. 928; Acree v. Commonwealth, 243 Ky. 216, 47 S.W.2d 1051. In view of the prompt ruling and admonition, the voluntary statement concerning the whisky business is not considered as prejudicial. Hocker......
  • Request a trial to view additional results
13 cases
  • State v. McMilliam, No. 291
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • April 18, 1956
    ...made under conditions requiring the issuance of a search warrant, this legal foundation must be laid. Acree v. Commonwealth, 243 Ky. 216, 47 S.W.2d 1051; Eaves v. Commonwealth, 241 Ky. 140, 43 S.E.2d 528; Conley v. Commonwealth, 230 Ky. 391, 20 S.W.2d 75; Wilson v. Commonwealth, 228 Ky. 517......
  • Miller v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • April 25, 1933
    ...descriptive part, it must state the facts which, if established by the proof, constitute the offense charged. Acree v. Com., 243 Ky. 216, 47 S.W.2d 1051, and cases cited. Section 1241a-1 creating the offense of confederating or banding together, does not give it a name, but merely describes......
  • Alsbrook v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • May 17, 1932
    ...offense created by the statute is the confederating, or banding together, to intimidate, injure, and disturb (Acree v. Com., 243 Ky. 216, 47 S.W.2d 1051), and it is not necessary to instruct on assault and battery, although violence may have been offered in the course of the alleged conspir......
  • Barnett v. Com.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 24, 1961
    ...in the absence of such a request by appellant. Renaker v. Commonwealth, 172 Ky. 714, 189 S.W. 928; Acree v. Commonwealth, 243 Ky. 216, 47 S.W.2d 1051. In view of the prompt ruling and admonition, the voluntary statement concerning the whisky business is not considered as prejudicial. Hocker......
  • Request a trial to view additional results

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