Anderson v. Commonwealth

• Decision Date: 13 June 1911
• Citation: 137 S.W. 1063,144 Ky. 215
• Parties: ANDERSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

137 S.W. 1063

144 Ky. 215

ANDERSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 13, 1911

Appeal from Circuit Court, Edmonson County.

Jess Anderson was convicted of murder, and he appeals. Affirmed.

M. M Logan and Ora E. Hazelip, for appellant.

James Breathitt, Atty. Gen., and Theo. B. Blakey, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

The appellant, Jess Anderson, Marsh Woosley, and Harvie Ashley were indicted for murdering Charlie Carroll by shooting him with a gun. The indictment contained six counts. In the first count, all of them were charged as principals. In the second count it was charged that the accused, together with persons to the grand jury unknown, entered into a conspiracy with each other, and went forth armed and disguised in pursuance of such conspiracy for the purpose of killing and murdering Carroll, and pursuant thereto, and in furtherance of said conspiracy and while the same existed, they each, with the knowledge, consent, and agreement of the other and with others whose names are unknown, shot and killed him. The third count charged that appellant did the shooting, and the other accused were present as aiders and abettors. The fourth count charged that Woosley did the shooting and that appellant and Ashley aided and abetted. The fifth count charged Ashley did the shooting and that the others aided and abetted. The sixth count charged that some person whose name was unknown to the grand jury did the shooting, and that appellant, Woosley, and Ashley were present aiding and abetting; and, further, that these accused, together with other persons whose names were unknown to the grand jury went forth armed and disguised, and in pursuance of a conspiracy which they formed to whip Del Carroll and others, and in furtherance of said conspiracy and agreement one of the conspirators whose name is to the grand jury unknown did unlawfully, willfully, maliciously, and feloniously kill Carroll. Under this indictment the accused were tried together. The jury acquitted Woosley and Ashley, but found appellant guilty, and fixed his punishment at imprisonment for life. A reversal is asked (1) for error of the court in overruling the general demurrer to the indictment; (2) because there was no evidence to connect appellant with the commission of the crime, or to show that a conspiracy was formed between Anderson and the other accused or any other person, either to whip Del Carroll or to murder Charlie Carroll; (3) for error in giving and refusing instructions.

It is well settled that an indictment may charge the commission of the offense in different modes and manners and in as many counts as the pleader desires to present it. Commonwealth v. Hargis, 124 Ky. 356, 99 S.W. 348, 30 Ky. Law Rep. 510. It sometimes happens that the grand jury that finds an indictment does not know with certainty the manner or mode in which the offense for which the indictment is found was committed, but they have sufficient evidence to identify the person charged in the indictment with its commission. And so in such cases it is proper practice for the indictment to charge in separate counts different modes or manners in which the offense was committed. And if upon the trial of the case the commonwealth can establish that the accused committed the offense in the manner and form described in any one of the counts that is sufficient, a conviction may be had. For example, if the grand jury is in doubt from the evidence before it whether the crime under investigation was committed by stabbing, shooting, beating, or poisoning, or by the accused as principal, accessory, or aider and abettor, the indictment may charge in one count that the accused committed the crime by shooting the deceased, in another by stabbing him, in another by poisoning him, in another by beating him, and in other counts that his death was brought about by the accused in some other way, or as principal, aider and abettor, or accessory. When an indictment is thus drawn, presenting sufficiently in each count every aspect of the case in which from the evidence before the grand jury the crime might have been committed, the accused cannot say that the indictment did not furnish him information as to the mode or manner in which the offense was committed, and he may be convicted upon evidence showing his guilt under any of the counts.

In this case, the grand jury presumably, and we might say from the evidence introduced on the trial certainly, had before it evidence showing (1) that Charlie Carroll came to his death by gunshot wounds, but the evidence did not show by whose hands these wounds were inflicted; (2) evidence showing that the appellant Anderson was present as one of the company of midnight ruffians that were engaged in an unlawful act at the time and place he was killed; (3) that some one of the persons so engaged in this unlawful act committed the crime, but which one of them was unknown; (4) that the appellant was either the perpetrator of the deed or was present aiding and assisting in its commission; (5) or he was a member of the band of conspirators, one of whom while engaged in the conspiracy committed the crime. Having this information, the grand jury properly charged in separate counts the different modes and manners in which the appellant was a party to the commission of the crime. If he shot and killed Charlie Carroll, or if he was present aiding and abetting the person who did kill him, or if he was a member of the band of persons who were engaged in some unlawful and felonious undertaking in the execution of which Charlie Carroll was killed, or if he was a member of a conspiracy formed for the purpose of killing this boy, he was guilty in the same degree and to the same extent, no matter in which one of these capacities he was a party or actor. Therefore, the court did not err in overruling the demurrer to the indictment.

The evidence shows conclusively that about midnight on the 29th of March, 1910, a band of armed and disguised men went to the home of Mrs. Del Carroll, for the purpose of...