Com. v. Brown Forman Distillers Corp.

• Decision Date: 28 May 1948
• Citation: 307 Ky. 597,211 S.W.2d 858
• Parties: COMMONWEALTH v. BROWN FORMAN DISTILLERS CORPORATION.
• Court: Kentucky Court of Appeals

211 S.W.2d 858

307 Ky. 597

COMMONWEALTH v. BROWN FORMAN DISTILLERS CORPORATION.

Court of Appeals of Kentucky

May 28, 1948

Appeal from Circuit Court, Woodford County; W. B. Ardery, Judge.

Brown Forman Distillers Corporation was indicted for depositing substances in public waters injurious to aquatic life. From a judgment dismissing the indictment, the Commonwealth of Kentucky appeals.

Judgment reversed with directions.

A. E. Funk, Atty. Gen., and W. Owen Keller, Asst Atty. Gen., for appellant.

Ogden, Tarrant, Galphin & Street, of Louisville, and Marshall Dawson, of Versailles, for appellee.

SIMS Chief Justice.

The appellee, Brown Forman Distillers Corporation, was indicted by the grand jury of the Woodford Circuit Court for the offense of depositing substances in public waters injurious to aquatic life, as denounced in KRS 150.460. The punishment for this offense is fixed in KRS 150.990(4)(a), at a fine of not less than $100 nor more than $1000, or imprisonment for not more than six months, or both such fine and imprisonment.

Appellee was indicted as a Kentucky corporation when in fact it was incorporated under the laws of Delaware. Upon the indictment being called for trial the Commonwealth moved to proceed against the Company in its true name, 'Brown Forman Distillers Corporation, a corporation organized and existing under the laws of the State of Delaware, and doing business in Woodford County, Kentucky', as provided in the Criminal Code of Practice, § 125. The Company objected to this motion and filed a motion to quash, a special demurrer and a general demurrer.

The court overruled the Commonwealth's motion to correct the mistake in the indictment relative to the Company's name and insert therein its true name, but sustained the Company's general demurrer to the indictment and dismissed same. The Commonwealth prayed an appeal to this court which was granted by the circuit court, and this appeal is prosecuted by the Commonwealth under § 337 of the Criminal Code of Practice to obtain a certification of the law, as there are other similar indictments pending in the Woodford Circuit Court. Commonwealth v. Williams, 230 Ky. 71, 18 S.W.2d 881.

The rule appears to be that where the indictment makes a mistake as to the name of the accused but leaves no doubt in the mind as to whom the grand jury intended to charge with the crime and the accused has not been misled by the mistake, then the indictment may be corrected under § 125 of the Criminal Code of Practice by the insertion of the correct name of the accused. But where it is not certain and clear as to whom the grand jury intended to indict and a change in the name or initials of the person mentioned in the indictment might result in the indictment charging a person other than the one the grand jury intended to charge with the crime, or might mislead the accused or not so identify him as to make available to him a plea of former conviction or acquittal, should he thereafter have occasion to make use of it, then no change may be made under § 125 in the name or initials of the person accused in the indictment. Lassiter v. Commonwealth, 249 Ky. 352, 60 S.W.2d 937; O'Brien v. Commonwealth, 260 Ky. 572, 86 S.W.2d 309; Amburgy v. Commonwealth, 300 Ky. 261 188 S.W.2d 437.

In the instant case it is clear that the grand jury intended to indict the Brown Forman Distillers Corporation, a corporation organized and existing under the laws of Delaware and doing business in Woodford County, Kentucky. When the indictment described the Company as a Kentucky corporation a mistake was made in its name just the same as if the indictment had been returned against an individual, 'John Doe', when the true name of the person the grand jury intended to indict was 'John W. Doe'. Where a mistake is made in the name of a corporation, it may be corrected under § 125 of the Criminal Code of Practice the same as if a mistake had been made in the name of an individual. International Harvester Co. v. Commonwealth, 124 Ky. 543, 99 S.W. 637 30 Ky.Law Rep. 716.

Appellee argues that a corporation's sole identity is its name and if it be indicted under the wrong name, there is no misnomer which can be corrected under § 125 but that a separate and distinct entity has been charged with the crime, citing such foreign cases as Surace v. Pio, 112 Me. 496, 92 A. 621; Fitzpatrick v. Pitcairn, 371 Ill. 203, 20 N.E.2d 280; Culpepper v. State, 173 Ga. 799, 161 S.E. 623, 79 A.L.R. 217. As we read these cases they appear to hold that while a misnomer may be corrected in an indictment or a complaint, it is not permissible to change the identity of the party charged and to substitute for him a distinct and separate entity. With this we agree. However, our General Assembly has provided that the word 'person' includes a corporation. KRS 446.010(21) and Civil Code of Practice § 732(5). In view of such enact...