Commonwealth v. Barton

• Decision Date: 30 April 1913
• Citation: 153 Ky. 465,156 S.W. 113
• Parties: COMMONWEALTH v. BARTON.
• Court: Kentucky Court of Appeals

156 S.W. 113

153 Ky. 465

COMMONWEALTH v. BARTON.

Court of Appeals of Kentucky.

April 30, 1913

Appeal from Circuit Court, Cumberland County.

Robert Barton was indicted for disfiguring an animal, and he appeals. From a judgment of acquittal, the Commonwealth appeals. Opinion stated.

James Garnett, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen for the Commonwealth.

P Sandidge, of Burkesville, for appellee.

MILLER J.

The appellee, Robert Barton, castrated a boar belonging to Langston Durberry. The boar died, and Barton was indicted under section 1249 of the Kentucky Statutes, which reads as follows: "If any person shall unlawfully kill disfigure, injure, main, poison or attempt to administer poison to any cattle, not his own, he shall be fined not less than ten nor more than one thousand dollars, or imprisoned not less than one nor more than twelve months, or both so fined and imprisoned."

The only witnesses to the affair were Frazier and Robinson, who testified that, at the request of Barton, Frazier held the hog's nose to keep it from squealing, and Robinson held the hog's legs while Barton castrated him. At the conclusion of this evidence, the trial court instructed the jury to find the appellee not guilty, which was done, upon the ground that, Frazier and Robinson being accomplices and equally guilty with Barton and uncorroborated, the charge had not been proved. The commonwealth appeals.

This ruling was made under sections 241 and 242 of the Criminal Code of Practice, which read as follows:

"Sec. 241. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely show that the offense was committed, and the circumstances thereof.

"Sec. 242. In all cases where, by law, two witnesses, or one witness with corroborating circumstances, are requisite, to warrant a conviction, if the requisition be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, by which instruction they are bound."

Unquestionably Frazier and Robinson were accomplices of Barton. It is stoutly contended, however, in behalf of the commonwealth that these sections of the Code, relating to the evidence of accomplices, do not apply in misdemeanor cases. In support of this contention, appellant points out that under section 11 of the Criminal Code it is provided that a public offense, of which the only punishment is a fine, may be prosecuted by a penal action in the name of the commonwealth, and that the proceedings in penal actions are regulated by the Code of Practice in civil actions. It is argued that this Code provision puts misdemeanors, punishable by a fine only, upon the footing of civil actions. On the other hand, appellee contends that in penal actions a plea of "not guilty" is sufficient, and unanimity of the jury is required to find a verdict; thus confining the action in these two respects, at least, within the rules applicable to criminal prosecutions. If the question had to be decided under the common law, and without the influence of precedents or the statute, we would be inclined to give great weight to the argument of appellant.

The term "accomplice," in its full meaning, includes all persons who have been concerned in the commission of a crime, all participes criminis, whether they are considered in strict legal propriety as principals in the first or second degree, or merely as accessories before or after the fact. Bouvier's Dic. The earlier definitions substitute the term "felony" for the term "crime" as used above; and in the later definitions the terms "felony," "crime," and "offense" are used indifferently.

Under the common law it was not a rule of law, but of practice only, that a jury should not convict on the unsupported testimony of an accomplice; and, if a jury chose to act on such evidence only, the conviction could not be quashed as bad in law. Stephen's Dig. Ev. art. 121. The books lay it down as the better practice at common law for the judge to advise the jury to acquit, unless the testimony of the accomplice be corroborated, not only as to the circumstances of the offense, but as to the participation of the accused in the transaction; and, when several parties are charged, that it is not sufficient...