Grise v. Commonwealth

• Decision Date: 07 October 1932
• Citation: 53 S.W.2d 362,245 Ky. 220
• Parties: GRISE et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

53 S.W.2d 362

245 Ky. 220

GRISE et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

October 7, 1932

Appeal from Circuit Court, Butler County.

James Grise and another were convicted of conspiring together for the purpose of doing certain things, and they appeal.

Reversed as to each defendant, with directions.

Oscar M. Smith, of Russellville, for appellants.

Bailey P. Wootton, Atty. Gen., and Wm. R. Attkisson, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

This is a prosecution against appellants, James and J. V. Grise, upon an indictment returned by the Butler circuit court attempting to accuse them of the offense denounced by section 1241a-1 of the 1930 Edition of Carroll's Kentucky Statutes, which consists in conspiring, or confederating and banding together of two or more persons for the purpose of doing certain things named in the statute, one of which is the commission of a felony. Upon their trial they were convicted, and appellant James Grise was punished by confinement in the penitentiary for one year, while his brother, the appellant J. V. Grise, was confined in the Reform School until he reaches the age twenty-one years since it was admitted that he was under seventeen years of age at the time of the doing of the acts complained of so as to bring him within the jurisdiction of the juvenile court.

Their motion for a new trial was overruled, and on this appeal therefrom, and from the judgment pronounced on the verdict they prosecute this appeal, urging a number of grounds, among which are: (1) The insufficiency of the indictment, and (2) that appellant J. V. Grise, who was admittedly a juvenile, cannot be prosecuted in the circuit court without having first been apprehended by the juvenile court of his county and by it properly transferred to the circuit court, which the record does not disclose was done. A third ground is, that the verdict is not sustained by sufficient evidence; but, since we have concluded that grounds 1 and 2 are well founded, neither the third nor any other one relied on will be discussed or determined, but the first two will be considered and disposed of in the order named.

1. The indictment in this case in its accusatory part, and in which the offense is named, charges defendants "of the offense of unlawfully banding and confederating together; committed as follows, to wit." Then follows what is usually designated as the "descriptive" part of the indictment, in which appellants are charged with willfully and feloniously going forth and intimidating and wounding one James Rosser, and of doing other acts, none of which are charged as having been maliciously done. But, perhaps, that would not be necessary if the offense with which appellants are accused had been properly designated, and we mention the failure of the indictment to charge the acts as having been done with malice only for the purpose of showing that the acts so charged did not in and of themselves constitute a felony.

In the case of Deaton & Boggs v. Commonwealth, 220 Ky. 343 295 S.W. 167, the sufficiency of an indictment to charge the offense denounced by the same section of the statute was before us. Its accusatory part in that case charged the offense as being "the crime of confederating" followed by a description of the acts constituting it, the latter of which was held to be sufficient; but because of the failure of the accusatory part of the indictment to name a public offense it was held that it failed to charge one. It will be observed that the indictment in this case is identical with the one in that one. It is true that the named offense...