Com. v. White

• Decision Date: 16 April 1908
• Citation: 109 S.W. 324
• Parties: COMMONWEALTH v. WHITE.
• Court: Kentucky Court of Appeals

109 S.W. 324

COMMONWEALTH v. WHITE.

Court of Appeals of Kentucky.

April 16, 1908

Appeal from Circuit Court, Clay County. "Not to be officially reported."

Larkin White was indicted for assault with a deadly weapon. From a ruling of the trial court holding the indictment insufficient, the commonwealth appeals. Affirmed.

James Breathitt, Atty. Gen., Thos. B. McGregor, Chas. H. Morris and Wm. Lewis, for the Commonwealth.

O'REAR C.J.

The indictment in this case was drawn in the following language "The grand jury of Clay county, in the name and by the authority of the commonwealth of Kentucky, accuse Larkin White of the offense of willfully assaulting another person with a deadly weapon, committed in like manner and form as follows, viz.: The said Larkin White did on the 9th day of May, 1907, in the county, circuit, and state aforesaid, and in less than one year next before the finding of the indictment herein, unlawfully and willfully point a deadly weapon at W. O. B. Lipps, and use same in a threatening and boisterous manner, and thereby greatly interrupting and disturbing him, and putting him in fear, against the peace and dignity of the commonwealth of Kentucky." It was framed under section 1308, Ky. St. 1903, which provides that "if any person shall draw a deadly weapon, or shall point any deadly weapon at another," etc.

The question for decision is as to the sufficiency of the indictment. The rule is that, "where the words of the statute are descriptive of the offense, the indictment will be sufficient if it shall follow the language and expressly charge the exact offense of the defendant." But this rule applies only to offenses which are complete in themselves, when the acts set out in the statute have been done or performed. Davis v. Commonwealth, 13 Bush 318; Ward v. Commonwealth, 14 Bush, 233; Mitchell v. Commonwealth, 88 Ky. 349, 11 S.W. 209; Commonwealth v. Tanner, 5 Bush, 316. We think this indictment is defective, in that it fails to describe the instrument claimed to be a deadly weapon. It might have been a pistol. It might have been a dirk, a sword, or a heavy, murderous bludgeon. Under this indictment the defendant would not be apprised of the circumstances that he would be required to meet and rebut at the trial. It is not direct and certain, under section 124 of the Criminal Code of Practice.

It is claimed in the case at bar that the deadly weapon used by the accused was a 45-caliber pistol. Such an instrument is a deadly weapon. But the defendant should have been informed of the fact that the commonwealth would attempt to prove that he used such weapon. The statement in the indictment that the defendant "did unlawfully and willfully point a deadly weapon at W. O. B. Lipps" is a conclusion of the pleader, in so far as it refers to the character of the weapon. The weapon may be deadly or not, according to its nature or to the manner of its use. Commonwealth v Duncan, ...