Commonwealth v. Vineyard

• Decision Date: 23 September 1904
• Parties: COMMONWEALTH v. VINEYARD et al.
• Court: Kentucky Court of Appeals

82 S.W. 289

118 Ky. 645

COMMONWEALTH v. VINEYARD et al.

Court of Appeals of Kentucky.

September 23, 1904

Appeal from Circuit Court, Carlisle County.

"To be officially reported."

Robert Vineyard and another were prosecuted for larceny, and from the action of the trial court in directing a verdict for defendants the commonwealth appeals. Action of court declared erroneous.

N. B. Hays and Loraine Mix, for the Commonwealth. J. M. Nichols & Son, for appellees.

PAYNTER, J.

The indictment charged that the defendants stole certain manilla ropes from the Columbus Stave Company, which was a duly incorporated company. The evidence introduced by the commonwealth tended to show that the ropes were stolen from the Columbus Stave Company, and that they belonged to that company, and that it was incorporated. The commonwealth did not introduce the records to show that it was a duly incorporated company. For this reason the court gave the jury an instruction to return a verdict for the defendants. The case was brought here to review the action of the court.

Section 128, Cr. Code Prac., reads as follows: "If an offense involve the commission of, or an attempt to commit an injury to person or property, or the taking of property, and be described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured or attempted to be injured, or as to the owner of the property taken or injured or attempted to be injured, is not material." The indictment was sufficiently certain without an averment that the Columbus Stave Company was an incorporated company. Therefore it was unnecessary to aver that it was an incorporated company. The offense could have been committed whether the company was incorporated or not. Although the indictment averred that it was a corporation, had the evidence upon trial shown that it was not a corporation, still a case would have been made out against the defendants. It was to meet this and similar cases that section 128 was enacted.

In our opinion, the court erred in giving the peremptory instruction. The case is not reversed, because there cannot be another trial.