Breckenridge v. Com.

• Decision Date: 13 April 1895
• Citation: 30 S.W. 634,97 Ky. 267
• Parties: BRECKENRIDGE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

30 S.W. 634

97 Ky. 267

BRECKENRIDGE v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 13, 1895

Appeal from circuit court, Ballard county.

"To be officially reported."

James Breckenridge was convicted of robbery, and appeals. Affirmed.

Samuel H. Crossland, for appellant.

Wm. J Hendrick, for the Commonwealth.

GRACE J.

The appellant, James Breckenridge, in connection with William O'Bryan and Frank Brown, having been indicted by the grand jury of Ballard county, and sentenced by the circuit court of that county to 10 years' confinement in the state penitentiary, in accordance with the verdict of the jury, now prosecutes this appeal. The first objection urged is to the special judge who tried the cause, the defendant having filed his affidavit objecting to the Honorable N. P Moss, the circuit judge of that district. Thereupon the clerk of the court, as required by the statutes in such cases proceeded to hold an election for special judge, whereupon the Honorable C. H. Thomas was duly elected. Thereupon the defendant objected to the said Thomas, on the ground that said Thomas was not a resident of the First judicial district, where the indictment was pending, it being conceded, however, in the record, "that he possessed all the qualifications required by the constitution and laws of this state for a circuit judge, and that he was a regular practitioner of the bar, in Ballard county, and that he was not interested in or employed in this cause." While it is true that the constitution does require a residence in the district to make one eligible for the office of circuit judge, in that district wherein he is elected, there is no such requirement as to a special judge chosen for some particular case. The statutes instead require that he shall be chosen from the members of the bar, and that he shall have the qualifications of a circuit judge, but not the residence in that district necessary for the office of circuit judge. A provision substantially similar is made applicable where the lawyers present fail in making an election. Thereupon it is the duty of the governor to appoint some one to try that particular case. It has never been the practice in the state, so far as we are advised, to limit the election or the designation by the governor to some lawyer resident in that particular district where the cause is pending. The statutes now applicable are substantially the same as those heretofore in force in Kentucky, and we assume that the legislature knew the construction given to the old law, and, failing to make any change by the new law, must be presumed to have accepted the construction heretofore given.

A second objection is to the indictment under which appellant was tried and convicted, a demurrer having been duly filed overruled, and exceptions taken. The indictment reads as follows, viz.: "The grand jury of Ballard county, Ky. and by the authority of the commonwealth of Kentucky, accuse James Breckenridge, William O'Bryan, and Frank P. Brown of the crime of robbery, committed in the manner and form as follows, viz.: The said James Breckenridge, William O'Bryan, and Frank P. Brown, in the said county of Ballard, on the 11th day of November, 1893, and before the finding of this indictment, did feloniously take from E. B. McNeal nineteen hundred dollars ($1,900), the same being gold and silver and United States currency, good and lawful money of the United States, and of the value of nineteen hundred dollars ($1,900), said money at the time being in the possession of said E. B. McNeal as the agent of the American Express Company, and others, to the grand jurors unknown, against the will of said E. B. McNeal, and by force, and by presenting pistols and other weapons at him, the said McNeal, and by putting him in the fear of immediate injury to his person; against the peace and dignity of the commonwealth of Kentucky." This indictment appears to have been drawn with great care, embracing and charging every essential element of the crime of robbery, designating the crime by its appropriate name of robbery; naming the persons accused by the grand jury; charging that the offense was committed feloniously; designating the property taken, and fixing a value on same; alleging that it was then, at the time it was taken, in the possession of McNeal as agent of the American Express; that it was taken from him; that this was done against the will of McNeal, and by force, designating the particular means used; and that it was by putting him, the said McNeal, in fear of immediate injury to his person; and all against the peace and dignity of the commonwealth of Kentucky. These several allegations as to the commission of the offense are set out with far greater particularity than the definitions given by some of our text writers seem to require. Mr. Greenleaf quotes and commends highly an early definition given by Lord Mansfield, as follows: "'Robbery' is the felonious taking of property from the person of another by force." This definition, Mr. Greenleaf says, is most...