Harr v. Commonwealth

• Decision Date: 14 October 1932
• Citation: 53 S.W.2d 575,245 Ky. 278
• Parties: HARR et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

53 S.W.2d 575

245 Ky. 278

HARR et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

October 14, 1932

Appeal from Circuit Court, Lewis County.

Cletius Harr and L. S. Ensley were convicted of stealing chickens under an indictment charging criminal conspiracy, and they appeal.

Reversed with directions.

A. C Jarvis, of Vanceburg, for appellants.

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

REES J.

The appellants, Cletius Harr and L. S. Ensley, were jointly indicted and charged with a criminal conspiracy as defined by section 1241a-1 of the Statutes. The accusatory part of the indictment reads: "The Grand Jury of Lewis County, in the name and by the authority of the Commonwealth of Kentucky, accuse Cletius Harr and L. S. Ensley of the crime of unlawfully, wilfully and feloniously confederating and banding themselves together for the purpose of doing a felonious act."

In the descriptive part of the indictment, it is alleged that pursuant to the conspiracy, they stole and carried away chickens of the value of $13, the property of Johnny Thomas, and that on another occasion they stole and carried away chickens of the value of $37.50, the property of Nellie Bierly. On their trial they were convicted, and each was sentenced to confinement in the penitentiary for two years.

A reversal of the judgment is sought on a number of grounds. It is first insisted that the trial court erred in overruling the demurrer to the indictment, because (1) it failed in its accusatory part to name or describe the felonious act which the accused conspired to commit; and (2) it is duplicitous.

The first objection to the indictment cannot be sustained. The accusatory part is in the language of the statute, which prescribes a penalty for confederating and banding together for the purpose of doing a felonious act, and, when read in connection with the descriptive part, which gives the details of the crime committed pursuant to the conspiracy, complied with the requirement of section 124 of the Criminal Code of Practice that the indictment must be direct and certain as regards the offense charged. Deaton and Boggs v. Commonwealth, 220 Ky. 343, 295 S.W. 167; Eubank v. Commonwealth, 210 Ky. 150, 275 S.W. 630; Asher v. Commonwealth, 211 Ky. 524, 277 S.W. 842; Grise v. Commonwealth, 244 Ky. ___, 53 S.W.2d 362, decided October 7, 1932.

The second objection is more serious. In the descriptive part of the indictment, two separate and distinct offenses are described. The accused are charged with stealing chickens, the property of Johnny Thomas and Mrs. Nellie Bierly. The chickens of Mrs. Bierly were stolen on the night of November 2, 1931, and those of Thomas were stolen on the night of December 7, 1931, more than a month in time elapsing between the two offenses.

In Asher v. Commonwealth, supra, three persons were indicted for confederating and banding together to do a felonious act. In the descriptive part of the indictment they were charged with a conspiracy to disturb, alarm, and intimidate three named persons, and that, while such conspiracy existed, they went forth armed, and did disturb, alarm, and intimidate the persons named by striking them with an iron rod, a deadly weapon. It was held that the indictment charged and described only a single offense, but in that case, while three persons were attacked and intimidated, all of the acts happened on the same day within a short space of time and in immediate sequence. The acts constituted one continuous transaction, and arose out of one conspiracy. Here the offenses, while of a similar nature, occurred at different places and more than a month apart. It would be going far afield to say under such circumstances that facts tending to show crimes committed at different times and places should be admitted as substantive evidence of a single conspiracy. The recently decided case of Acree v. Commonwealth, 243 Ky. 216, 47 S.W.2d 1051, is...