Commonwealth v. McChord
| Decision Date | 08 October 1834 |
| Citation | 32 Ky. 242 |
| Parties | The Commonwealth v. McChord et al. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR MADISON COUNTY.
Atto. Gen. Morehead for Plaintiff.
Mr Turner for Defendants.
On the trial of an indictment against William D. McChord, Silas Tribble and John Summers, for obstructing a highway, the Commonwealth having proved that each of them, owning separate parcels of land on the road, had extended his fence upon it each in a different place, but all within the boundary designated in the indictment,--the circuit court being of the opinion that the defendants were jointly, and not severally charged, instructed the jury to find " as in case of a nonsuit; " on the ground that there was a fatal variance between the indictment and the proof. The jury having accordingly found the defendants not guilty, judgment was rendered in their favor.
Indictment for obstructing a road; evidence, instructions and judgment for defendants in the circuit court and points made here.
The correctness of that judgment is now to be considered.
The counsel for the defendants insists that the indictment is insufficient:-- first, because if it import, as he contends that it does, a joint offence, it should have charged expressly that the defendants " jointly," and not as it does, that " they and each of them," committed the illegal act; and second, because if it was intended to make a several charge, the omission of the technical word " severally," is fatal; and he argues therefore, that as the indictment is substantially defective, the judgment should be affirmed, even though the court below may have erred in giving the instruction.
On the other hand, the Attorney General, without noticing the argument respecting the indictment, contends, that if the conclusiveness of the objections urged against it be conceded, still the circuit judge erred in directing a nonsuit, and that this error should produce a reversal; because, as he argues, the judgment on the verdict will bar any other indictment, either joint or several, for the same offences.
Different persons guilty of a joint offense may be indicted jointly or severally.
A joint indictment against several for distinct offenses will not lie.
If one can be indicted alone for an offense in which he participated with others, the offense is the joint act of all; otherwise it is several.
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State v. McAninch
... ... that using different counts is a cure ... [172 ... Iowa 102] Commonwealth v. McChord , 32 Ky. 242, 2 ... Dana 242, involved an indictment for obstructing a highway, ... preferred against three abutters owning separate ... ...