Daniels v. Commonwealth

• Citation: 181 Ky. 365
• Parties: Daniels v. Commonwealth.
• Decision Date: 20 September 1918
• Court: Court of Appeals of Kentucky

181 Ky. 365

Daniels v. Commonwealth.

Court of Appeals of Kentucky.

Decided September 20, 1918.

Appeal from Pike Circuit Court.

R. H. COOPER, JAMES M. ROBERSON, WILLIS STATON and O. A. STUMP for appellant.

CHARLES H. MORRIS, Attorney General, and D. M. HOWERTON, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SETTLE — Affirming.

The appellant, G. C. Daniels, was convicted in the court below of the crime of forgery, and his punishment fixed by the verdict of a jury at five years' confinement in the penitentiary. He was jointly indicted with his father, John P. Daniels, who was charged with forging the body of a deed, the name of the grantor thereto and the uttering of the instrument; and the appellant, who was deputy clerk of the Pike county court, with the forging of the certificate showing the acknowledgment of the deed by the grantor, to which he signed the name of J. E. Ratliff, clerk of the Pike county court, by his own name as deputy clerk. The deed, which is set out in full in the indictment, purports to have been executed by James C. Justice to John P. Daniels and to convey the latter, in consideration of the sum of $500.00, the tract of land therein particularly described. It is substantially charged in the indictment that the deed, as well as the name of the alleged grantor appearing thereto, was counterfeit and a forgery, written and the acknowledgment thereto certified, without the knowledge or consent of Justice; and that it had not been signed or acknowledged by him, which facts were well known to both G. C. Daniels and John P. Daniels at the time of the forgery of the deed and certificate, and that they did unlawfully, wilfully, corruptly, fraudulently and feloniously make and commit the forgeries mentioned with the intent to thereby defraud and injure Justice and deprive him of his property. The indictment also charges that John P. Daniels, being present at the time, did aid, assist, encourage, advise and cause G. C. Daniels to forge and sign the false certificate to the deed.

The defendants were given separate trials, and John P. Daniels being first tried was convicted of the crime of uttering the forged instrument, but it does not appear from the record before us for what length of time the verdict of the jury directed his confinement in the penitentiary. Upon the calling for trial of the prosecution against the appellant, G. C. Daniels, and following the empaneling of the jury selected to try him, he waived a formal arraignment and entered a plea of guilty to the charge of forgery contained in the indictment. But thereafter, before the submission of the case to the jury, and without withdrawing his plea of guilty, he requested the trial court to peremptorily instruct the jury to find him not guilty. This the court refused to do and submitted the case to the jury under an instruction directing them to find him guilty upon his plea to that effect, and to fix his punishment as provided by the statutes for such an offense.

Appellant excepted to the ruling of the court refusing the peremptory instruction asked by him and objected to the instruction that was given. The jury, by their verdict, found appellant guilty of the crime charged and fixed his punishment at confinement in the penitentiary for a term of five years. He filed motion and ground for a new trial, which the court overruled, complaining of which, and of the judgment of conviction, he has appealed.

One of the grounds urged by the appellant's counsel for a reversal of the judgment is that the trial court erred in not sustaining a demurrer to the indictment. We are at a loss to understand why this complaint should be made, as the record fails to show that appellant filed or entered a demurrer to the indictment. The sufficiency of the indictment could have been tested by demurrer, but as this was not done, we are not called upon to declare what ruling the trial court should have made upon a demurrer, if filed or entered to the indictment. The question of the sufficiency of the indictment is, however, attempted to be raised by appellant in one of the grounds filed in support of his motion for a new trial, wherein it is claimed that the facts alleged in the indictment do not constitute a public offense in law.

We are disposed to treat this complaint as a motion in arrest of judgment, as allowed by sections 275-276, Criminal Code, as upon such motion...