Com. v. Phoenix Amusement Co., Inc.

• Decision Date: 17 November 1931
• Citation: 241 Ky. 678,44 S.W.2d 830
• Parties: COMMONWEALTH v. PHOENIX AMUSEMENT CO., Inc.
• Court: Kentucky Court of Appeals

44 S.W.2d 830

241 Ky. 678

COMMONWEALTH v. PHOENIX AMUSEMENT CO., Inc.

Court of Appeals of Kentucky

November 17, 1931

Appeal from Circuit Court, Madison County.

The Phoenix Amusement Company, Inc., was indicted for a violation of the Sunday law and the maintenance of a common nuisance. From judgment dismissing indictment, the Commonwealth appeals, seeking a certification of the law.

Affirmed.

J. W Cammack, Atty. Gen., Geo. H. Mitchell, Asst. Atty. Gen., and Grant E. Lilly, of Richmond, for the Commonwealth.

J. J Greenleaf and G. Murray Smith, both of Richmond, for appellee.

RICHARDSON J.

The Phoenix Amusement Company owns its building and therein operates a picture show at Richmond, Madison county, Ky. It began to engage in this business in that city in September 1930. On February 17, 1931, the grand jury returned an indictment against it "for the offense of carrying on work on the Sabbath day, and for maintaining and operating a common nuisance, to-wit; a motion picture show on the Sabbath day." It is charged in the indictment that it was a corporation, created and existing under the laws of the commonwealth of Kentucky, authorized to conduct moving picture shows and other exhibitions in this commonwealth.

In the accusatory part of the indictment two offenses are named: (a) The offense of violating section 1321, Ky. Statutes, commonly known as the "Sunday law"; and (b) of "unlawfully suffering and maintaining a common nuisance, by conducting its usual business on the Sabbath day." In the descriptive portion it is alleged that the company, on the 15th day of February, 1931, a Sabbath day, and on each and every Sabbath between October 15, 1930, and the 15th day of February, 1931, inclusive, did, unlawfully and willfully, give an exhibition of moving pictures in its building in Richmond, Madison county, Ky.; that it invited and received in its building a large number of persons to see its picture show for which it charged an admission fee, which was the usual and customary business of the company, and that the same was given in the usual and customary manner by its regular employees, the number thereof exceeding three on each Sabbath day; that its show and the work thereof by its employees were defiantly engaged in over the earnest protests of the religious people of the city and county, and over the written orders of the city council; that the company gave out in speech and in writing that it intended to continue its show in its building. It is charged that all of these acts were against the protests of the good citizens and of the city council; that a large number of people attended on the Sabbath to witness its show; that their attendance thereat "breaks the peace of the community and encourages others to attend, and but for their attendance, the show would not be given"; that a large number of passes had been given to the people to induce them to attend. It is further charged that this was done by it to break down the Sabbath law, to debauch the people, and to break down and to offend the moral and religious feelings of the people of the community, "all to the common nuisance of the good people residing in the city and county, and to those residing in or near the building and having a right to pass and repass."

The appellee filed its general demurrer to the indictment on the ground that (a) it did not state facts sufficient to constitute a public offense, (b) and that more than one offense was charged in the indictment.

On a consideration of the demurrer, the trial court indicated he would sustain it because more than one offense was named in the indictment. Thereupon the commonwealth elected to try the offense of "common nuisance." And an order was entered dismissing the indictment, or so much thereof as charged a statutory offense. The appellee thereupon insisted on its demurrer on the ground the facts stated in the indictment were not sufficient in law to constitute the common-law offense of common nuisance. The court sustained the demurrer on this ground, dismissed the indictment, to which the commonwealth excepted and prayed an appeal, and is here asking for a certification of the law.

Section 126, Criminal Code of Practice, expressly provides that an indictment, except in the offenses mentioned in section 127 thereof, neither of which is set out in the indictment herein, shall charge but one offense. It may charge that it was committed in different modes and by different means, and it may allege the modes and means in the alternative. Anderson v. Com., 144 Ky. 215, 137 S.W. 1063; Brannon v. Com.,

215 Ky. 589, 286 S.W. 785.

It is provided by section 162 of the Criminal Code of Practice that a defendant may plead to an indictment the pleas authorized by section 172 thereof, or he may demur to it. On his filing of a demurrer, if the indictment charges more than one offense, the attorney for the commonwealth may dismiss one of them, and thereupon the demurrer should not be sustained on that ground. Section 168, Criminal Code of Practice; Cartwright v. Com., 196 Ky. 6, 244 S.W. 55; Davis v. Com., 201 Ky. 300, 256 S.W. 429; Hudson v. Com., 214 Ky. 578, 283 S.W. 1034.

It is very clear that in the accusatory part of the indictment the appellee was charged with both the "offense of violating the statute, commonly called the 'Sunday law"' and also the offense of "suffering and maintaining a common nuisance, by conducting its usual business on the Sabbath day." Thus it was charged with two offenses, one a statutory, and the other a common-law offense, which was plainly a misjoinder according to the provisions of section 126 supra.

Section 124 of the Criminal Code of Practice requires the indictment be direct and certain as to (a) the party charged; (b) the offense charged; (c) the particular circumstances of the offense charged, if they be necessary to constitute a complete offense. Section 136 provides: The "words used in a statute to define an offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used." Taylor v. Com., 3 Bush, 508; Moore v. Com., 92 Ky. 630, 18 S.W. 833, 13 Ky. Law Rep. 738; Gratz v. Com., 96 Ky. 162, 28 S.W. 159, 16 Ky. Law Rep. 465; Barnett v. Com., 195 Ky. 699, 243 S.W. 937.

In Deaton v. Com., 220 Ky. 343, 295 S.W. 167, 168, it was held: "A good statement of the offense in the descriptive part of the indictment will not supply the failure to name the offense in the accusatory part of the indictment, and, vice versa, a correct naming of the offense in the accusatory part of the indictment will not supply a defective statement of the acts constituting the offense in its descriptive part."

In Gregory v. Com., 226 Ky. 617, 11 S.W.(2d) 432, this rule was quoted with approval, and the court further said: "It is essential that accusatory and descriptive part of indictment cover same offense."

In Com. v. Tobin, 140 Ky. 261, 130 S.W. 1116, it was written that: "An indictment must charge in its accusing part a public offense for which it is intended to present the accused, and in the descriptive part must state the facts which, if established by the proof, constitute the offense charged." This rule was approved in Com. v. Castleman, 8 Ky. Law Rep. 608; Brooks v. Com., 98 Ky. 143, 32 S.W. 403, 17 Ky. Law Rep. 698; Bennett v. Com., 150 Ky. 604, 150 S.W. 806, 43 L.R.A. (N. S.) 419; Elliott v. Com., 194 Ky. 576, 240 S.W. 61; Forman v. Com., 195 Ky. 758, 243 S.W. 1043.

Considering the fact that the indictment distinctly named the two offenses in the accusative part, the one a statutory and the other a common-law offense, in view of the rule stated and the express provisions of sections 122, 124, and 126 of the Code, supra, it should be conceded that the indictment improperly joined the two offenses which made it, under section 126, supra, subject to demurrer, and that it was the duty of the court to sustain the demurrer on this ground, unless the commonwealth's attorney exercised the privilege authorized by section 168 of the Criminal Code of Practice, by making the election of the offense he desired to prosecute and dismissing the other. His right of election may be exercised before the demurrer is sustained (Davis v. Com., 201 Ky. 300, 256 S.W. 429), or even after it is sustained (Cartwright v. Com., 196 Ky. 6, 244 S.W. 55).

The election by the commonwealth's attorney to prosecute and try the appellee on the charge of the offense of common-law nuisance brings squarely before us for consideration two questions: (1) Are the facts set out in the descriptive part of the indictment sufficient to constitute the offense of common-law nuisance? and (2) is merely the stating in the descriptive part of the indictment facts constituting only a violation of a statute against carrying on, or engaging in, a business on the Sabbath day, sufficient in law to constitute the offense of common nuisance? Subsection 2 of section 122 of the Criminal Code of Practice requires that every indictment shall contain "a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case."

The rule stated in Deaton v. Com., supra, and Gregory v. Com., supra, is applicable to, and controls, the descriptive part of the indictment as much, or the same, as it controls the accusatory part as announced by the court in those cases. The naming of the offense in the accusatory part does not dispense with the requirements of subsection 2 of section 122, supra.

The punishment prescribed by section 1321, Ky. Statutes, for engaging in business...