Ellis v. Commonwealth

Decision Date24 October 1879
Citation78 Ky. 130
PartiesEllis v. The Commonwealth.
CourtKentucky Court of Appeals

1. The indictment accuses appellant of an offense relating to section 7, article 28, chapter 29, General Statutes, while a part of the particular acts charged relates exclusively to the 8th section of the same article.

2. The instruction is error, because it applies the penalty fixed in the 7th section, not exceeding $2,000, to acts relating alone to section 8, where the penalty does not exceed $500.

3. The demurrer to the indictment ought to have been sustained because acts constituting more than one offense are charged.

APPEAL FROM OLDHAM CIRCUIT COURT.

W LINDSAY, BULLOCK & BECKHAM, AND JAMES W. HEAD FOR APPELLANT.

1. The indictment contains allegations derived from the 7th and also the 8th section of article 28, chapter 29, and, therefore two separate offenses are blended.

2. The demurrer should have been sustained. (Commonwealth v Powell, 8 Bush, 7; Crim. Code, secs. 127, 165; Gen. Stat., 359, 339, 335.)

J. S. MORRIS, CARROLL & BARBOUR FOR APPELLEE.

1. The words " willfully and unlawfully" characterize the charge against appellant.

2. The demurrer came too late. (Crim. Code, secs. 122, 157, 162, 171, 172; Gen. Stat., 246, 359; 2 Met., 374; Ibid, 485; 5 Bush, 317; 10 Ibid, 477; 8 Ibid, 2; 13 Ibid, 319, 333; Barb. Dig., vol. 45.)

OPINION

HARGIS, JUDGE:

The indictment accuses the appellant " of the offense of unlawfully injuring and destroying real property of value not his own."

The 7th section of article 28, chapter 29, General Statutes, provides, " If any person unlawfully, but not with felonious intention, take, carry away, deface, destroy, or injure any real … . property of value not his own, … . he shall be fined not less than ten nor more than two thousand dollars."

The accusation was clearly for an alleged violation of the 7th section of the statute, which it literally follows. A charge of unlawfully injuring property, under the 8th section of the article named, is not good, because it must aver that offenses therein denounced were not only unlawfully but willfully done. (Turner v. Commonwealth, 8 Bush, 1.) And the omission of the necessary averment in the indictment to bring the accusation within the 8th section furnishes a strong reason that it was not the intention of appellee to declare under that section.

The acts alleged in the indictment to constitute the offense charged were, that the accused " did injure the fence … . and destroy the grass of Isaac Davis, by willfully and unlawfully pulling down the fence and turning and driving cattle in the field and upon the grass of Davis, and by causing the cattle … . to eat and destroy the grass."

It is provided by the 8th section of the article and chapter quoted, that " if any person shall willfully and unlawfully … . pull down or open the fence, … destroy or injure the vegetables of any person, … . he shall be fined not less than five nor more than five hundred dollars."

From the reading of the two sections, it will be observed that the accusation is under the 7th, and a part of the acts alleged as constituting the offense are embraced in the 8th section, and declared by it to constitute a different offense than that charged in the indictment, for which there is a different penalty.

By the 8th section, willfully and unlawfully pulling down or opening the fence of another, subjects the offender to a fine of not less than five nor more than five hundred dollars; but the court below instructed the jury, that if they believed the accused " injured or destroyed the fence of Isaac Davis … . by pulling down the fence, … . said fence being of any value, … they should find him guilty, and fix his punishment at a fine of not less than ten nor more than two thousand dollars." They were also told, that if they believed he injured or destroyed the grass of Davis, they should find him guilty, and fine him in the same manner.

Whether injuring and destroying grass is an injury to real estate denounced by the 7th section su...

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16 cases
  • Bowling v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • 17 January 1922
    ... ... advised before the trial of the character of the offense for ... which he would be, and in fact was, prosecuted as if the ... election thereof by the commonwealth had been compelled by ... sustaining the demurrer to the indictment. Mobley v ... Commonwealth, 190 Ky. 424, 227 S.W. 584; Ellis v ... Commonwealth, 78 Ky. 130. Therefore the appellant's ... contention that the overruling of his demurrer to the ... indictment was such error as entitles him to a reversal of ... the judgment is wholly without merit ...          As by ... the second ground urged for reversal of ... ...
  • Warrix v. Com.
    • United States
    • Kentucky Court of Appeals
    • 3 October 1922
    ...243 S.W. 1025 195 Ky. 795 WARRIX v. COMMONWEALTH. Court of Appeals of Kentucky.October 3, 1922 ...          Appeal ... from Circuit Court, Letcher County ...          Lige ... and that when an election is made, the demurrer, although ... well taken, should be overruled, was held in Ellis v ... Commonwealth, 78 Ky. 130, Mobley v ... Commonwealth, 190 Ky 424, 227 S.W. 584, and others. The ... appellant, while conceding the ... ...
  • Stephens v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • 23 April 1915
    ...Where the case does not fall within any of the exceptions above mentioned, an indictment that charges more than one offense is bad. Ellis v. Com., 78 Ky. 130; Messer v. Com., 26 Ky. Law Rep. 40, 80 S.W. Clearly, the indictment under consideration charges more than one offense, and is theref......
  • Walker v. Com.
    • United States
    • Kentucky Court of Appeals
    • 17 January 1922
    ...(a) Having whisky in possession for the purpose of sale; (b) selling whisky--it was subject to demurrer. Criminal Code, § 126; Ellis v. Commonwealth, 78 Ky. 130; v. Commonwealth, 80 S.W. 489, 26 Ky. Law Rep. 40. Furthermore, the exception in the statute must be negatived in an indictment ch......
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