Barnett v. Com.

• Decision Date: 26 September 1922
• Citation: 243 S.W. 937,195 Ky. 699
• Parties: BARNETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

243 S.W. 937

195 Ky. 699

BARNETT v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 26, 1922

Appeal from Circuit Court, Bell County.

George Barnett was convicted of assault with felonious intent to commit robbery, and appeals. Affirmed.

J. G Rollins, of Pineville, for appellant.

Charles I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

Under an indictment charging him with an assault with felonious intent to commit robbery, the appellant, George Barnett, by verdict of a jury, was found guilty of the crime, and his punishment fixed at confinement of one year in the penitentiary. He was refused a new trial, and has appealed from the judgment entered upon the verdict. The first ground urged for a reversal of the judgment is alleged error of the trial court in overruling the appellant's demurrer to the indictment. The want of merit in this contention will appear from a mere comparison of the language of the indictment with that of section 1160, Kentucky Statutes, defining the crime charged. The statute provides:

"If any person, with an offensive weapon or instrument, shall unlawfully and maliciously assault, or shall by menace, or in or by any forcible or violent manner, demand any money goods, chattels, bond, bill, deed or will or other evidence of right, or anything of value, or from any other person, with a felonious intent to rob or commit robbery upon such person, he shall be confined in the penitentiary not less than one nor more than two years."

The indictment in its formal, accusatory phraseology substantially adopts and follows the language of the statute, and, in addition, alleges the commission by the accused of the offense charged before the finding of the indictment; the acts alleged as constituting same being that he did "feloniously, and with intent to rob T. A. McDaniel and G. C. Woodson of money and things of value, assault, hold up said parties with a pistol, and put them in fear." The validity of the indictment is not, as claimed by counsel for appellant, affected because of the use in the indictment of the words "feloniously and with intent to rob," instead of the words "with a felonious intent to rob" employed by the statute. The words used convey no other meaning than that the acts constituting the crime for which the appellant was indicted were committed with a felonious intent; the words "feloniously" and "intent" being so immediately connected by the injunction "and" as to set forth the felonious intent essential under the statute to constitute the offense charged as completely as if such intent had been indicated by the use of the words "with a felonious intent," contained in the statute. Although an offense is not charged in the precise words used in the statute defining it, if it is alleged in words conveying the same meaning it will be sufficient. This rule is expressly declared by the Criminal Code, § 136, which provides:

"The words used in a statute to define an offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used." Moore v. Commonwealth, 92 Ky. 630, 18 S.W. 833, 13 Ky. Law Rep. 738; Gratz v. Commonwealth, 96 Ky. 162, 28 S.W. 159, 16 Ky. Law Rep. 465.

Obviously, the action of the trial court in overruling the appellant's demurrer to the indictment was authorized, and therefore free of error.

It is also insisted for the appellant that the trial court erred in failing to instruct the jury upon the law regarding drunkenness as a defense. Whether such instruction was authorized must be determined from the evidence heard on the trial, which substantially developed the following facts: T. A. McDaniel, his wife, and G. C. Woodson, while riding at night in McDaniel's automobile from Middlesboro to Pineville, in Bell county, were halted and held up on the public highway near the village of Excelsior by the appellant, who, with a loaded pistol in his hand pointed at them, so stood in the way of the automobile as to prevent its passing him. When McDaniel stopped the car the appellant took a position at the side and front of the car near the wife of McDaniel, who with her husband occupied the front seat, pointed his pistol at her, and ordered the parties to hold up their hands. In stopping the car McDaniel succeeded in securing, from its receptacle near him, his pistol, which, by putting his arm around his wife he thrust in the appellant's face, and at the same time caught with his other hand that of the appellant containing the pistol, which he continued to hold...