Commonwealth v. Drewry

• Decision Date: 19 June 1907
• Citation: 103 S.W. 266,126 Ky. 183
• Parties: COMMONWEALTH v. DREWRY.
• Court: Kentucky Court of Appeals

103 S.W. 266

126 Ky. 183

COMMONWEALTH v. DREWRY.

Court of Appeals of Kentucky.

June 19, 1907

Appeal from Circuit Court, Jefferson County, Criminal Division.

"To be officially reported."

Frank G. Drewry was indicted for violating the election laws. From a judgment sustaining a demurrer to the indictment, the commonwealth appeals. Reversed.

Louis B. Wehle, J. M. Huffaker, N. B. Hays, Atty. Gen., and C. H Morris, for the Commonwealth.

Edwards & Ogden, for appellee.

CARROLL J.

The following indictment was returned by the grand jury of Jefferson county against appellee: "The grand jurors of the county of Jefferson, in the name and by the authority of the commonwealth of Kentucky, accuse Frank G. Drewry of the crime of unlawfully and feloniously certifying to an improper certificate of election committed in manner and form as follows, to wit: That on the 7th day of November, 1905, there was held under the laws of the state of Kentucky, in the city of Louisville, in the county of Jefferson, an election of county, city and legislative officers, and officers of election were appointed under, and in accordance with, the laws of Kentucky, to serve as such in the Thirty-Eighth Precinct of the Twelfth Ward; that the said Frank G. Drewry was duly so appointed to serve as clerk of election in said precinct, under color of authority given him by which said appointment, he, the said Frank G. Drewry, did knowingly and willfully certify to an improper certificate of election purporting to be the correct and proper certificate of election purported in said certificate to have been held on November 7, A. D. 1905, which certificate was made out and certified to in manner and form as follows, to wit: [Then follows the certificate in full, and a lengthy statement showing that the polls were not opened or the election held at the place appointed, but that, in violation of law, and without observing any of the requirements necessary, the voting place was moved, and the polls opened at another place, and the election there held]. Furthermore, that the said certificate was false and fraudulent, not being a true or correct record of the number of votes actually cast by voters in said precinct at the said pretended election, as the said Frank G. Drewry then and there well knew at the time he certified to the said certificate that the said certificate was false and fraudulent in these particulars namely, to wit: The said certificate contains the statement that there were 301 ballots cast in the said pretended election, and that there were 298 ballots counted as valid; whereas, in fact there were not 301 ballots actually cast in the said pretended election by duly qualified voters, but certain duly qualified and legal voters did not go to the said voting place established as hereinbefore set forth near to the corner of Thirtieth and Walnut streets, and did not receive any ballots there, and did not place any ballots in the box provided for that purpose. That the said qualified and legal voters are as follows: A. G. Knapp, living at No. 3600 West Chestnut street and Mike J. Kleinheinz, living near the corner of Thirty-First and Magazine streets. That nevertheless the certificate hereinbefore set out was purportedly based in part upon ballots fraudulently pretended by the persons who acted as officers of election at the said voting place established by them at Thirtieth and Walnut streets to have been actually and legally cast by the said A. G. Knapp and the said Mike J. Kleinheinz, and also of a ballot of which the stub was numbered 24 so pretended to have been cast by one C. Fosser living at No. 1707 Twenty-Eighth street, but which was not cast by the said C. Fosser. That in these respects, and to this extent, and by reason of the aforesaid fraudulent pretensions, the said certificate was false and incorrect, as the said Frank G. Drewry then and there well knew, at the time when he certified to the same. That such willful certifications to the aforesaid incorrect certificate was contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the commonwealth of Kentucky. J. M. Huffaker, Commonwealth of Kentucky."

To this indictment a demurer was sustained, and in support of the ruling of the trial judge it is insisted that the indictment is fatally defective, first, because it has no caption; second, because the accusatory part of the indictment states no offense; third, because the indictment does not properly charge that appellee was an officer of election, or that an election was held in the precinct, but does affirmatively charge that there was held in this precinct a pretended election, which was illegal and void. These several objections we will notice in the order named.

In section 123 of the Criminal Code of Practice there is a form of indictment, which contains the style of the prosecution and the court in which it is pending, as: "The Commonwealth of Kentucky against George Smith. Franklin Circuit Court." Under section 124 of the Criminal Code of Practice, the indictment "must be direct and certain as regards the party charged; the offense charged; the county in which the offense was committed." And section 122 provides that the indictment must contain "the title of the prosecution, specifying the name of the court in which the indictment is presented, and the names of the parties." But it is not essential to the validity of the indictment that this matter shall appear in the caption, as the caption is not an indispensable part of the indictment. It will be sufficient if it is set out in the body of the indictment. At best, the caption is merely a form, and neither takes from nor adds to the validity of the indictment. Mitchell v. Com., 106 Ky. 602, 51 S.W. 17; Bishop's New Criminal Procedure,§ 661; Warton, Criminal Law, §§ 219, 220. In the indictment before us, the caption is omitted; but we do not regard this omission as either fatal or material. It appears that it was found by the grand jury of Jefferson county, and in the name of the commonwealth of Kentucky it accuses the defendant of the crime described, and shows beyond cavil that it was committed in Jefferson county--thus containing...