Brown v. Com.

• Decision Date: 18 March 1909
• Citation: 135 Ky. 635,117 S.W. 281
• Parties: BROWN et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

117 S.W. 281

135 Ky. 635

BROWN et al. v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 18, 1909

Appeal from Circuit Court, Bell County.

"To be officially reported."

Robert Brown and others were convicted of robbery, and appeal. Affirmed.

J. G Rollins and N. B. Hays, for appellants.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

SETTLE C.J.

The appellants, Robert Brown, Charlie Woods, and Pearl Wiggins, were indicted, tried, and convicted of the crime of robbery, the punishment of each being fixed at confinement in the penitentiary two years. Appellants ask a reversal of the judgment of conviction.

Numerous errors are assigned, but only two of them are relied on for the reversal asked. The first complaint is that the court erred in overruling appellants' demurrer to the indictment. At the close of the indictment appears the name of G. A. Denham, as commonwealth's attorney of the Twenty-Sixth judicial district, when it should have contained the name of J. B. Snyder, present commonwealth's attorney of the judicial district. Denham was the predecessor in office of Snyder, and it is admitted that the indictment against appellants was written upon a partly printed form, which was one of a lot that had been procured by Denham while commonwealth's attorney, and that in preparing the indictment Snyder forgot to erase the name of Denham and write his own in lieu thereof as commonwealth's attorney. The error did not affect the validity of the indictment. In the case of Sims v. Commonwealth, 13 S.W. 1079, 12 Ky. Law Rep. 215, it is said: "The Code does not require the commonwealth's attorney to sign the indictment. It makes no difference whether the person signing the indictment was a county or commonwealth's attorney. The law did not require either to sign it."

If, as thus held, neither the county nor the commonwealth's attorney is required by the Code to sign the indictment, it necessarily follows that the signing or printing by mistake of the name of a person to it as commonwealth's attorney who is not such officer would not invalidate it. The mistake could have no other effect than would the absence from the indictment of the name of the commonwealth's or county attorney. It is further insisted for appellants that the trial court erred in failing to instruct the jury as to the law in respect to larceny, and that the evidence upon which they were convicted, if it showed them guilty of any crime more directly tended to prove them guilty of larceny than robbery; and, $6 being the amount of which the owner was deprived by them, they should have been convicted of petit larceny if convicted at all; whereas the instructions that were given only contained the law as to robbery, and compelled the jury to find appellants guilty of that crime, or to acquit them. It remains to be seen whether the evidence supports this contention. That introduced by the commonwealth conduced to prove that William Roberts and another man named Johnson were in the city of Middlesboro on the night of the robbery, having gone there from the state of Virginia. Together they walked along one of the streets of the city until they reached a point in front of the Shady Grove saloon and near a restaurant, where they met two negro men and a negro woman. The negro woman was Pearl Wiggins, and one of the negro men the appellant Charles Woods. The other man was a one-eyed...