Carr v. Commonwealth

• Decision Date: 31 March 1894
• Parties: CARR v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

25 S.W. 886

CARR v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 31, 1894

Appeal from circuit court, Marion county.

"Not to be officially reported."

Eva Carr, convicted of confederating and going forth armed or disguised with others to do a felonious act, appeals. Reversed.

Lev. Russell, for appellant.

W. J Hendrick, for the Commonwealth.

LEWIS J.

Eva Carr, appellant, and Lou Cowherd, females, and Henry Moss and Charles May, were indicted for the crime of unlawfully confederating or banding themselves together and going forth armed or disguised for the purpose of doing a felonious act. The offense described in section 90, c. 182, of the statute under which the indictment in this case was presented, is as follows: "If two or more persons shall unlawfully confederate or band themselves together, and go forth armed or disguised for the purpose of intimidating or alarming any person, or to do any felonious act they shall each on conviction be imprisoned in the penitentiary not less than six nor more than twelve months." It is not charged in the indictment defendants went forth for the purpose of intimidating or alarming any person; and, if such charge had been made, it would not have been supported by the evidence for, as held in Embry v. Com., 79 Ky. 439 intimidating or alarming, in the sense the words are obviously used, imply use of physical force or menace, and involve a breach of the peace. But the simple charge is they went forth for the purpose of doing a feloni-purpose of committing a felony. The evidence shows that a farmer was waked from sleep at night by noise among his chickens, who upon going out of his house, saw two men running from the place where the chickens roosted. He, with his son, pursued the men, and finally came up with them in company with the two females indicted, who were dressed in male clothing. Next morning four or five geese were discovered in that vicinity, near where a fire had been kindled, which defendants had evidently stolen. They were all arrested without resistance, and practically confessed their purpose to steal a few chickens. It seems to us the evidence totally fails to show the persons indicted went forth for the purpose of doing a felonious act, in the meaning of the statute, or that the object of the statute was to punish by confinement in the penitentiary for such acts as defendants were proved to have committed on that occasion; for, if so,...