Catron v. Com.

• Decision Date: 15 December 1933
• Citation: 251 Ky. 786,66 S.W.2d 17
• Parties: CATRON et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

66 S.W.2d 17

251 Ky. 786

CATRON et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

December 15, 1933

Appeal from Circuit Court, Elliott County.

Irvin Catron and Elmer Catron were convicted of robbery, and they appeal.

Affirmed.

James Clay, of Morehead, for appellants.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

CLAY Justice.

Irvin Catron and Elmer Catron, who were convicted of robbery and sentenced to five years' imprisonment, challenge the regularity of their trial on several grounds.

The facts are these: Between 1 and 2 o'clock on the morning of August 22, 1933, appellants and Bobby Jones, who lived in Mason county, went to the home of Luke Thornsberry in Carter county to get some whisky. According to Thornsberry, they stated that they wanted about 40 gallons. Thornsberry replied that he had only 18 gallons, and appellants agreed to take it. Thereupon Thornsberry went to his kitchen where he kept the whisky and brought out the 18 gallons. Upon his return appellant, Irvin Catron, and Jones drew pistols and demanded the whisky. Elmer (Ted) Catron, who came in after the others told one of them to present his pistol on Mrs. Thornsberry who was present. While this was going on, Jones took two shotguns that were hanging on the wall and placed them in their machine. The whisky was also carried out of the house and placed in the machine. This was done while his hands were up, and he could not help himself. They never traded for the whisky, but just threw their guns on him and took it. When appellants left, they said, "We will pitch the guns out next to the highway. Don't you follow." The guns were not thrown out on the highway, but were carried by appellants to Maysville, where they were arrested. Later on Thornsberry went to Maysville and identified two of the guns and a pistol as his property. According to appellants Thornsberry owed them some whisky for some empty cans that they had brought there and he had not paid for, and they took the guns because Thornsberry had threatened to kill them and as he had a fast machine out in the yard, they were afraid he would overtake them and kill them. They told him they would drop the guns out along the road, but were afraid that he would catch them, and they took the guns on home with them.

The first ground urged for reversal is that the court erred in overruling the demurrer to the indictment, which, omitting the formal parts, reads as follows:

"The grand Jury of Elliott Co. in the name and by the authority of the Commonwealth of Ky. accuse Bob Jones, Ted Catron and Erwin Catron of the crime of Robbery, committed in manner and form as follows to-wit:

The said defendant Bob Jones, Ted Catron and Erwin Catron in the county of Elliott, on the 2nd day of Oct. A. D. 1933, and before the finding of this indictment, did unlawfully willfully, feloniously take a shotgun, the property of Luke Thornsberry, from his residence and in his presence and against his will, by force and arms and by putting him in fear of some immediate injury to his person and to his family Contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the Commonwealth of Ky."

The grounds of attack on the indictment are that it failed to allege that the property was taken with the intention to deprive the owner thereof, and permanently convert it to the use of the defendants, and that it was not alleged that the property taken was of any value.

This is not a prosecution under a particular statute for a particular kind of robbery, as in the case of Ward v Commonwealth, 14 Bush, 233, but is a prosecution for common-law robbery. In the early case of Commonwealth v. Brooks, 1 Duv. 150, language substantially the same as that employed in the indictment was held sufficient, and that rule has never been departed from. Indeed, as pointed out in 23 R. C. L. 1152, the weight of authority is to the effect that charging that the defendant feloniously and violently did take from the person of the prosecuting witness certain property is sufficient, since such language imports stealing lucri causa and an asportation with intent to deprive the person in the lawful possession of the property in...