Cupp v. Com.

• Decision Date: 28 February 1888
• Citation: 7 S.W. 405,87 Ky. 35
• Parties: CUPP v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

7 S.W. 405

87 Ky. 35

CUPP v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 28, 1888

Appeal from circuit court, Graves county.

Robertson & Smith, for appellant.

P. W Hardin, for appellee.

LEWIS J.

Appellant Charles Cupp, was jointly with Bob Cupp indicted for the offense of willfully and maliciously cutting with a knife Morrow Kitts with intention to kill him; of which he did not die. The indictment contains three counts. In the first, both of them are charged with the cutting; in the second, Bob Cupp is charged therewith, and appellant with being present counseling, aiding, or abetting; and in the third, appellant is charged as principal and Bob Cupp as aider or abettor. By the verdict, appellant was found guilty as charged in the indictment, and his punishment fixed at confinement in the penitentiary, and Bob Cupp guilty of aiding and abetting as charged in the indictment, and his punishment fixed at $50.

1. It was made ground of demurrer and is contended in argument that the indictment is defective, because what is called the principal offense and the offense of aiding or abetting cannot, as not authorized by section 127, Crim. Code, be charged in one indictment. The fallacy of that position consists in the assumption that there are two, when in fact but one offense is charged in the indictment. Section 2, art 6, c. 29, Gen. St., under which the indictment was found, provides that if any person shall willfully and maliciously cut another with a knife, or other deadly weapon with intention to kill, if the person cut die not thereby, shall be confined in the penitentiary, and any one who shall counsel, aid, or abet in the commission of the offense shall be fined, or confined in jail, or both, in the discretion of the jury. "By the common law all persons present giving aid and comfort to another committing an offense, even a felony, are regarded as principals; that is, as in legal contemplation doing the deed. Therefore, if a statute makes the doing of a thing criminal, it includes with the actual doer, persons who are present lending their countenance and aid." Bish. St. Cr. 135. It does not make any difference that while the actual cutting is made by the statute a felony, the one present, aiding and abetting, is guilty only of a misdemeanor. For both are guilty of the same offense,--the one as principal and the other as accessory; and to require two distinct indictments and two trials, when the circumstances of the offense would have to be stated in each indictment and proved at each trial, would be needless, and, certainly, is not required by the Code. In the case of Com. v. Patrick, 80 Ky. 605, referred to by counsel, the indictment was held bad, not because both the principal and accessory were charged in it, but for the reason that the offense being a single act of shooting could not be done by both, but that one being principal and the other accessory, as aider or abettor, they should have been so respectively charged. But in the indictment in this case the defendants are charged alternatively as principal and as aider or abettor, which may be properly done under the Code. It seems to us the jury could not have used language more definite and certain than was used in their verdict, for no one could be misled, or in doubt as to their meaning. It appears that on the occasion of the cutting, which was done after night, the defendants, Bob, about 18, and Charles, about 16 years of age, and several other boys, were without objection sitting around the stove in the back part of a grocery store of which Kitts, the person injured, had temporary charge. A person present, in narrating a previous occurrence in which a small brother of the defendants was an actor, called him a "little devil," at which Bob took offense, when, in the language of the witness Kitts, the person giving the offense "began to explain and apologize; they kept talking and fussing," whereupon he (Kitts) told them, addressing the Cupp boys, they must go out of the house, to which they paid no attention, and h...