Canada v. Commonwealth

• Decision Date: 19 January 1932
• Citation: 242 Ky. 71,45 S.W.2d 834
• Parties: CANADA v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

45 S.W.2d 834

242 Ky. 71

CANADA v. COMMONWEALTH.

Court of Appeals of Kentucky

January 19, 1932

Appeal from Circuit Court, Whitley County.

John Canada, Sr., was convicted of maliciously shooting and wounding another with intent to kill, and he appeals.

Reversed and remanded.

J. B Johnson and B. B. Snyder, both of Williamsburg, for appellant.

J. W Cammack, Atty. Gen., and Basil P. Cooper, of Lebanon, for the Commonwealth.

RICHARDSON J.

The appellant, John Canada, Sr., and three other persons were indicted, charged with the crime of malicious shooting and wounding another with intent to kill. He asked for a separate trial, which was granted him. On his trial he was convicted and his punishment fixed at two years in the penitentiary. He prosecutes this appeal, urging as grounds for reversal, error in (a) overruling the demurrer, and in overruling his motion for continuance; (b) the admission of incompetent evidence (c) refusal to admit competent evidence; (d) error in instructions to the jury.

The indictment contains three counts, one stating formally the essential and necessary facts constituting the crime of malicious shooting and wounding another with intent to kill; another charging combining and confederating to commit the crime; and the third, aiding and abetting his codefendants in its commission.

It is argued that the indictment fails to charge that the shooting and wounding was done maliciously. This contention is without merit. The indictment charges that the act of shooting and wounding was willfully and maliciously committed. It sufficiently meets the requirements of sections 122, 124, and 136 Criminal Code of Practice, to charge the crime denounced by section 1166, Ky. Statutes.

The indictment charges two offenses, in that it avers that the appellant and his codefendants willfully and maliciously shot and wounded Margaret Canada and John Canada, Jr., with intent to kill them.

Section 126, Criminal Code of Practice, requires that the indictment for such crime must charge but one offense. In Commonwealth v. Browning, 146 Ky. 770, 143 S.W. 407, we had before us an indictment wherein the defendant was charged with the crime of maliciously shooting and wounding another with intent to kill. The same defendant was charged in a second indictment with maliciously shooting and wounding still another person by the same shot which wounded the person named in the first indictment. It was held that the conviction of the defendant, under the first indictment, for shooting and wounding the one, was not a bar to the prosecution against him for maliciously shooting and wounding another named in the second indictment, although the two were shot and wounded at the same time and by one and the same bullet by the single discharge of defendant's pistol. Keeton v. Com., 92 Ky. 522, 18 S.W. 359, 13 Ky. Law Rep. 748.

Under the authority of Browning v. Com., supra, it is our view that the indictment herein charging appellant and his codefendants with the crime of malicious shooting of Margaret Canada and John Canada, Jr., stated two offenses within the meaning of section 126, Criminal Code of Practice.

Section 168, Criminal Code of Practice, provides that, "if the indictment improperly charge more than one offense, the attorney for the Commonwealth may dismiss one of them, and thereupon the demurrer shall not be sustained on that ground."

The commonwealth may elect at the time or before the demurrer is sustained (Davis v. Com., 201 Ky. 300, 256 S.W. 429), or an election may be made after the demurrer has been sustained. Cartwright v. Com., 196 Ky. 6, 244 S.W. 55.

The commonwealth's attorney made no election. The court improperly overruled the appellant's demurrer to the indictment, but it will be seen from what we shall hereafter say in respect to this subject that the error of the court was cured by the instructions given to the jury, and that this error was not prejudicial to the substantial rights of the appellant and affords no grounds of reversal.

The appellant entered a motion for a continuance. The record presents other inescapable grounds of reversal, and inasmuch as the grounds for continuance here presented may not exist on another trial, if one should be had, we do not deem it required of us to discuss the action of the court in refusing the continuance.

The admission of the alleged incompetent evidence and the refusal of the court to admit competent evidence present the decisive questions.

To properly consider them, a summary of the evidence is required. The appellant and John Canada, Jr., and Margaret Canada are related. They reside within a short distance of each other. At the time of the commission of the crime with which the appellant is charged, John Canada, Jr., and Margaret Canada occupied the same residence. John Canada, Jr., on the evening before the commission of the alleged offense was plowing in a garden near this residence. It is claimed by witnesses for the commonwealth that appellant, with Clifford Canada, about 3 or 4 o'clock in the afternoon, passed near the garden in which John Canada, Jr., was plowing and there engaged in threatening John Canada, Jr., and used vile epithets in reference to him and Margaret Canada and also declared he would get them "out that very night." Shortly thereafter, John Canada, Jr., claims he, in company with Jim Canada, met the appellant in a hollow near the home of Margaret Canada, and that the appellant drew a gun on him (John Jr.), and that he and Jim Canada took, by force, the gun from him. Shortly after this, the appellant passed the home of Robert Canada with a shotgun, where he engaged in shooting. It is shown that after these occurrences the appellant went to a store at Clio where cartridges were purchased. He returned from the store to his barn, near his home, where his son and his codefendants were. A schoolhouse is located about equidistant between the home of appellant and that at which John Canada, Jr., and Margaret Canada, resided. Within a few minutes after appellant returned to his barn, the witnesses for the commonwealth claim they saw the appellant and his codefendants near the schoolhouse from which they advanced toward the home of Margaret and John Canada, Jr., and began shooting. It is claimed by the witnesses for the commonwealth that, both with shotguns and pistols, a great many shots were fired toward, and into, the house. John Canada, Jr., and Margaret Canada claim they saw and recognized the appellant and his codefendants at the time of the shooting. Margaret Canada received eight shots in her person, "ranging from the middle of her knee or middle of her leg to the end of her nose." John Canada, Jr., received eleven shots ranging "from the knee up to the top of his head." "They were about No. 5 shot."

It is insisted that neither paragraph 2 of the indictment, which charges appellant and his codefendants with banding and confederating together for the purpose of committing the crime, nor paragraph 3, which charges them with aiding and abetting in the commission of the crime, states facts sufficient to constitute a public offense. Conceding this to be true, the first paragraph of the indictment is sufficient to warrant the admission of the evidence showing a conspiracy to commit the crime and to show that the crime was committed by aiding and abetting in its commission. Paragraph, or count, 1 of this indictment is sufficient, without paragraphs 2 and 3, if the evidence authorized it, to authorize the giving to the jury instructions on the theory of a conspiracy, and also aiding and abetting. Ray v. Com., 230 Ky. 656, 20 S.W.(2d) 484, 66 A. L. R. 1297; Crenshaw v. Com., 227 Ky. 223, 12 S.W.(2d) 336; Deaton v. Com., 211 Ky. 651, 277 S.W. 1001; Fletcher v. Com., 239 Ky. 506, 39 S.W.(2d) 972; Webb v. Com., 220 Ky. 334, 295 S.W. 154.

In Crenshaw v. Com., supra, nine defendants were charged as principals with the commission of the crime of murder. The indictment contained no charge of conspiracy or of aiding and abetting. On the joint trial nine of the defendants were convicted; seven of them prosecuted an appeal. We held that evidence was properly admitted by the trial court to establish a conspiracy by the defendants to commit the crime, and the judgment of conviction was affirmed. Miller v. Com., 78 Ky. 15, 39 Am. Rep. 194, and Morgan v. Com., 188 Ky. 458, 222 S.W. 940; Skillian v. Com., 206 Ky. 586, 268 S.W. 299; Owens v. Com., 181 Ky. 378, 205 S.W. 398. See the more recent case of Fletcher v. Com., supra.

In Ray v. Com., supra, the indictment charged to defendants as principals with the crime of robbery. It contained no charge of conspiracy. The evidence abundantly established a conspiracy. The convicted defendant, Ray, was shown to be absent from the county in which the crime was committed at the time it was alleged to have been committed. It was held that the indictment was sufficient to inform the defendant on trial that he was accused of entering into a conspiracy with his codefendant to commit the crime of robbery. The court instructed the jury on the theory that the crime charged was committed in pursuance to, and in execution of, the conspiracy and while the same existed. This court approved the instructions and affirmed the judgment of conviction.

In Webb v. Com., supra, Deaton v. Com., supra, and Short v. Com., 187 Ky. 279, 219 S.W. 165, the rule was stated that one indicted along with a codefendant as principal may be convicted as aider and abettor although it was not alleged in the indictment that the defendant on trial was an aider and abettor in the commission of the crime. Evidence of a conspiracy or of aiding and abetting, where two or more defendants are charged as principals in the commission of the...