Deaton and Boggs v. Commonwealth

Decision Date03 June 1927
PartiesDeaton and Boggs v. Commonwealth.
CourtUnited States State Supreme Court — District of Kentucky

1. Indictment and Information. Criminal Code of Practice, section 124, requiring indictment to be direct and certain as regards the offense charged, should be read with section 122, subsec. 2, providing that the indictment must contain a statement of acts constituting the offense in ordinary and concise language with such certainty as to enable the court to pronounce judgment.

2. Indictment and Information. "Accusatory part" of indictment is that part where the offense is named.

3. Indictment and Information. — The statement of acts constituting offense in ordinary and concise language, as required by Criminal Code of Practice, section 122, subsec. 2, is contained in that part of the indictment designated as the "descriptive part."

4. Indictment and Information. — Indictment is fatally defective unless it both names the offense in the accusatory part, with certainty required by Criminal Code of Practice, section 124, and states the acts constituting the offense in the descriptive part with sufficient certainty to enable the court to pronounce judgment, as required by section 122, subsection 2.

5. Indictment and Information. — Indictment charging defendants in accusatory part with "confederating" held demurrable for lack of certainty, required by Criminal Code of Practice, section 124, requiring indictment to be certain as regards offense charged, although language in descriptive part of indictment was broad enough to include offense, either under Ky. Stats., section 1223, prohibiting confederating and banding together to intimidate or do any felonious act, or section 1241a-1, prohibiting banding together to disturb, injure, or rescue persons.

6. Courts. — Objection that at times of indictment and trial there was no legal term in Perry circuit court, and entire proceedings were therefore void, held without merit, since emergency clause in Acts 1926, c. 54, changing time of holding Perry circuit court, is invalid and prior April term was therefore not repealed.

Appeal from Perry Circuit Court.

SAUFLEY & WARD for appellants.

F.E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

The appellants and defendants below, Deaton and Boggs, were convicted in the Perry circuit court of either the statutory crime denounced by section 1223 or that denounced by section 1241a-1 of the Kentucky Statutes, but of which one they were accused and convicted cannot be ascertained from the indictment, since its language in the description of the offense, of which defendants were accused, is broad enough to include the one denounced by either of those sections. Their punishment was fixed at confinment in the penitentiary for one year each, and, their motions for a new trial having been overruled, they prosecute this appeal, urging as grounds for reversal (1) that their demurrer filed to the indictment should have been sustained, and (2) that at the times they were indicted and tried there was no legal term of the Perry circuit court, and their motions to quash the indictment, made before the trial, and to set aside the verdict against them, made after the trial, should have been sustained on the ground that the entire proceedings against them were void because at no step in the prosecution was there a legal term of the Perry circuit court in session. The two grounds will be disposed of in the order named.

1. The accusatory language of the indictment says:

"The grand jury of Perry county, in the name and by the authority of the commonwealth of Kentucky, accuse Matt Deaton and James Boggs of the crime of confederating, committed in the manner and form as follows, to wit."

The immediately following description charges facts that would authorize a conviction under either one of the two sections of the Statutes, supra, but it is not necessary for us to determine whether the language of the indictment that is not common to both sections would be sufficient to render it demurrable, or whether such language could be treated as surplusage and the indictment held good for whichever offense the testimony established, provided it was good in other respects. We will therefore dispose of the case without determining that question.

Section 124 of the Criminal Code of Practice says:

"The indictment must be direct and certain, as regards . . . the offense charged."

Subsection 2 of section 122 of the same Code prescribes how the indictment shall describe the offense of which defendant is accused, by saying that:

"The indictment must contain . . . a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the right of the case."

The two sections therefore should be read together, and they mandatorily require that an indictment "must be direct and certain" as to "the offense charged" (section 124), and then it must contain "a statement of the acts constituting the offense," etc. The first requirement is contained in what we have heretofore held to be the accusatory part of the indictment, which is that part where the offense is named, and the second requirement should appear in that part of the indictment designated as its descriptive part, and we have uniformly held that unless the indictment contained the required certainty prescribed by both of the sections, supra, it would be fatally defective. In other words, a good statement of the offense in the descriptive part of the indictment will not supply the failure to name the offense in the accusatory part of the indictment, and, vice versa, a correct naming of...

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8 cases
  • Acree v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • March 25, 1932
    ...624; Diamond v. Com., 237 Ky. 374, 35 S.W.2d 554; Eubank v. Com., 210 Ky. 150, 275 S.W. 630; Weisiger v. Com., supra. In Deaton v. Com., 220 Ky. 343, 295 S.W. 167 and Gregory v. Com., 226 Ky. 617, 11 S.W.2d 432, rule was stated that it was essential that the accusatory and descriptive parts......
  • Miller v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • April 25, 1933
    ...Ky. 686, 24 S.W.2d 568; Patrick v. Com., 225 Ky. 202, 7 S.W.2d 1039; Grise et al. v. Com., 245 Ky. 220, 53 S.W.2d 362; Deaton and Boggs v. Com., 220 Ky. 343, 295 S.W. 167; Acree v. Com., 243 Ky. 216, 47 S.W.2d 1051; Lynch v. Com., 248 Ky. 210, 58 S.W.2d 408. In every indictment charging con......
  • Commonwealth v. Donoghue
    • United States
    • Kentucky Court of Appeals
    • June 23, 1933
    ... ... the descriptive portion of the indictment fully defines the ... objects to be within the stipulations and purview of the ... statute. Deaton & Boggs v. Commonwealth, 220 Ky ... 343, 295 S.W. 167; Grise v. Commonwealth, 245 Ky ... 220, 53 S.W.2d 362. But it is sufficient ... [63 ... ...
  • Combs v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • May 22, 1928
    ... ... Acts ... 1926, c. 54, p. 168. It was held by this court in ... McIntyre v. Commonwealth, 221 Ky. 17, 297 S.W. 931, ... and in Deaton v. Commonwealth, 220 Ky. 343, 295 S.W ... 167, that the emergency clause in the act of March 25, 1926, ... was invalid on its face and for that ... ...
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