Duroff v. Commonwealth

• Decision Date: 14 June 1921
• Parties: DUROFF ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

232 S.W. 47

192 Ky. 31

DUROFF ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 14, 1921

Appeal from Circuit Court, Floyd County.

Mike Duroff and Nick Duke were convicted of grand larceny, and they appeal. Affirmed.

C. B Wheeler, of Prestonsburg, for appellants.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SAMPSON J.

Mike Duroff and Nick Duke, two sons of Servia, who have been in this country only a short time, were indicted in the Floyd circuit court for the crime of grand larceny, and upon trial convicted, and their punishment fixed at one year confinement in the state penitentiary. They appeal. In doing so they urge the following grounds for reversal of the judgment against them: (1) The court erred in failing to sustain their motion to quash the indictment because there was no sufficient order showing its return by the grand jury and that it was filed in open court in the presence of the grand jury; (2) the court allowed incompetent evidence to be introduced against appellants; (3) misconduct of the attorney for the commonwealth in repeating an incompetent question after the court had ruled it improper; (4) failure of the court to call an interpreter; (5) error of court in overruling motion of appellants for a directed verdict in their favor; and (6) the instructions are erroneous and prejudicial to appellants in that they did not inform the jury that one of the appellants might be acquitted even if the jury should believe from the evidence the other defendant had been proven guilty beyond a reasonable doubt.

1. The order filing the indictment of which complaint is made is very imperfect. It reads in so far as pertinent to the inquiry here:

"Came this day the grand jury in charge of Squire Hamilton, foreman, and after answering to their names reported to the court the following indictments, to wit: * * * The Commonwealth of Kentucky v. Mike Duroff, etc. Crime, Grand Larceny. Bail. $_____. * * *--each of which were signed, 'A true bill,' by Squire Hamilton, foreman, and filed in open court in the presence of the grand jury, with process ordered and directed to issue thereon, and with bail fixed as indicated above on foot of each true bill."

On the back of the indictment is the following indorsement:

"Commonwealth of Kentucky v. Mike Duroff and Nick Duke. Indictment. Grand Larceny. A true bill. Squire Hamilton, Foreman. Witnesses for the commonwealth--Joe Tots, Garfield Wright, Pete Maliva, D. S. Spencer, and John Toney. J. D. Smith, Commonwealth's Attorney. Filed in open court this 8th day of February, 1921. Henry Stephens, C. F. C. C. Bail $______."

It is insisted that the order filing the indictment and the indorsement on the back thereof are insufficient to satisfy the statutory requirements concerning the finding and return of indictments. Criminal Code, § 121, reads:

"The indictment must be presented by the foreman, in the presence of the grand jury, to the court, and filed with the clerk, and remain in his office as a public record."

We have held that the clerk's indorsement filing an indictment is not essential to its validity, and, if the question is raised, may be supplied. Pence v. Commonwealth, 95 Ky. 618, 26 S.W. 810, 16 Ky. Law Rep. 148. It has also been held that any reasonable identification of the crime or charge in the indictment will suffice. Commonwealth v. English, 6 Bush, 431. Nor was it necessary for the order filing the indictment to contain the names of the grand jurors where the order impaneling them sets out the names, for this will enable the defendant or person charged to obtain any information concerning the formation of the jury and the members thereof. The order in question sufficiently shows that the grand jury came into court, and, after answering to a call of their names, reported into court an indictment accusing Mike Duroff, etc., of the crime of grand larceny. But it is urged that the abbreviation "etc." appearing after the name Mike Duroff is not sufficient to indicate that the indictment included the name "Nick Duke" or any other person than Mike Duroff. This abbreviation is from the Latin "et cetera," meaning "and others" or "and so forth," and is in common use and is generally understood to mean what the words imply. The order indicated that there was more than one defendant named in the indictment, and the indorsement on the back of the indictment set forth both names. The order filing the indictment was defective, but was a substantial compliance with the Code provision, and did not entitle the appellants to a quashal of the indictment.

2. No incompetent evidence is pointed out by the appellants. It is true the whole case is one of circumstantial evidence but the crime of grand larceny as well as other crimes are often so proven. Davis v. Commonwealth, 191 Ky. 242, 229 S.W. 1029.

3. The attorney for the commonwealth should not have asked the appellant Mike Duroff if he had not murdered and robbed his father in the old country, or if he had not told some one he did so, but the objection of appellants to these questions were both promptly sustained by the trial judge, who stated in the presence and hearing of the jury, "It is incompetent and not necessary to ask him any more about it." No other question was asked along this line. There was no motion by appellant to discharge the jury, and, if there had been, we do not think the conduct of the commonwealth's attorney in asking the incompetent questions was such as to have warranted the court in sustaining such motion. In the light of what took place we do not think the substantial rights of the appellants were prejudiced.

4. The record...