Durham v. Commonwealth

• Decision Date: 18 December 1931
• Citation: 241 Ky. 612,44 S.W.2d 557
• Parties: DURHAM v. COMMONWEALTH (three cases).
• Court: Kentucky Court of Appeals

44 S.W.2d 557

241 Ky. 612

DURHAM v. COMMONWEALTH (three cases).

Court of Appeals of Kentucky

December 18, 1931

Appeal from Circuit Court, Campbell County.

Aaron Durham was convicted of robbery, and he appeals.

Reversed for new trial.

THOMAS WILLIS, and PERRY, JJ., dissenting.

Alex R Campbell, of South Portsmouth, for appellant.

J. W Cammack, Atty. Gen., and A. M. Samuels, of Frankfort, for the Commonwealth.

DIETZMAN C.J.

The appellant was thrice indicted in the Campbell circuit court. His attorneys and the commonwealth have practiced these cases throughout on the theory that he was indicted each time for a violation of section 1160 of the Kentucky Statutes, which provides, in substance, that if any person with an offensive weapon shall unlawfully and maliciously assault or in a forcible or violent manner demand any money, goods, or other things of value from any person with an intent to rob or commit a robbery upon such person, he shall be confined in the penitentiary not less than five nor more than twenty years. It will be noted that the offense denounced by this section is an assault with intent to rob. A reading of the indictments in the instance cases discloses, however, that the appellant in each indictment is charged with the offense of robbery itself and not with the offense of an assault with intent to rob. The punishment for the offense of robbery prescribed by section 1159 of the Statutes is confinement in the penitentiary for not less than two nor more than ten years. By agreement, the appellant was tried on all three indictments at one time. On such trial, he was found guilty on all three charges and sentenced to serve ten years for each charge, the sentences to run successively. The three appeals have been heard together in this court. Many grounds are urged for reversal on this appeal, most of which have no merit because not presented by the record, such as, for instance, the complained of remarks by the commonwealth's attorney which do not appear in the bill of exceptions; the refusal to grant a continuance when the records fail to show that any was asked; the failure of his counsel appointed by the court, it being other than counsel who now represents him, to argue the case (if, indeed, appellant could make any such complaint on appeal). Of the errors presented by the record, the argument that the verdict is flagrantly against the evidence cannot be sustained. If the jury believed the commonwealth's testimony, it was clearly established that appellant had on three different occasions robbed at the point of a pistol two Kroger grocery stores, one of them being twice his victim. He was positively identified by the managers of these stores. It was also shown that later, when the officers attempted to arrest him, he fled and was shot but managed to get away. When he was still later arrested, he was found wounded. On the witness stand he denied running from the officers and that he had been shot by them, but he could not state when, where, why, how, or by whom he had been shot. His sole defense in the case was an alibi which was not very impressive. His main argument on this appeal is that the indictments were, under the decision of this court in Chappell v. Commonwealth, 200 Ky. 429, 255 S.W. 90, invalid for duplicity, and that the instructions of the court which followed the indictments were likewise erroneous for the same reason. The commonwealth contends that no demurrer being filed to the indictments, we are precluded from holding them to be bad because of duplicity. We need not, however, enter into a discussion of this question because, as we have pointed out, these indictments were not for the offense denounced by section 1160 of the Statutes, but were indictments for robbery. It may be remarked though in passing that what was said in the Chappell Case about section 1160 of the Statutes creating two offenses was expressly overruled in the recent case of Hannah v. Commonwealth, 242 Ky. 220, 46 S.W.2d 121, decided December 1, 1931. However, we are of opinion that the case will have to be reversed because of error in the instructions. As to this, majority of the court are of the opinion that prejudicial error was committed when the court told the jury that, if it found the appellant guilty, they should fix his punishment at not less than five nor more than twenty years (this being the punishment prescribed by section 1160 of the Statutes), instead of not less than two nor more than ten years, that being the punishment prescribed by section 1159 of the Statutes for robbery the offense for which appellant under the indictment and instructions was tried.

This court has heretofore had before it, in three different classes of cases,...