Hudson and Walker v. Commonwealth

Decision Date07 May 1926
Citation214 Ky. 578
PartiesHudson and Walker v. Commonwealth.
CourtSupreme Court of Kentucky

1. Indictment and Information. — Where many offenses charged in indictment constituted misjoinder requiring correction, demurrer by accused held authorized as means to that end.

2. Intoxicating Liquors — To Convict Two Defendants for Unlawful Manufacture of Liquor, it is Not Necessary to Allege or Prove Conspiracy to Commit Such Offense. — To convict two defendants for unlawful manufacture of liquor, it is not necessary to allege and prove conspiracy to commit such offense, since they were each amenable to punishment, if engaged in the unlawful manufacture regardless of their relationship to each other in making the liquor.

3. Criminal Law — Overruling Demurrer to Duplicitous Indictment, where Comminwealth's Attorney Elected to Prosecute on One of Offenses Charged, but Failed to Enter Order Dismissing the Others, Held Not Prejudicial (Criminal Code of Practice, Sections 168, 353). — Overruling demurrer to duplicitous indictment, where Commonwealth's attorney corrected misjoinder by electing to prosecute for only one of offenses charged, but failed to enter order dismissing other charges under Criminal Code of Practice, section 168, held not prejudicial, where defendants did not ask that such order be made, in view of section 353.

4. Criminal Law — Where Commonwealth's attorney Elected to Prosecute for One of Several Offenses Charged, but Failed to Enter Order Dismissing the Others, Error, if Any, in Overruling Demurrer Held Cured by Confining Evidence and Instructions to Offense Elected (Criminal Code of Practice, Section 168). — Where Commonwealth's attorney elected to prosecute for one of several offenses charged in indictment, but failed to enter order dismissing the others, under Criminal Code of Practice, section 168, error, if any, in overruling demurrer to indictment held cured by confining evidence and instructions to offense elected.

5. Intoxicating Liquors — Evidence Held Sufficient to Take Case to Jury and to Support Conviction for Unlawfully Manufacturing Intoxicating Liquor. — Evidence, though largely circumstantial, held sufficient to take case to jury and support conviction for unlawfully manufacturing intoxicating liquor.

6. Criminal Law. — Evidence of Flight by Defendants when Found by Officers Held Competent to Show Guilt in Prosecution for Manufacturing Liquor. — Evidence of flight and escape, or attempt to escape, by defendants when found guilty at still by officers held competent to show guilt in prosecution for manufacturing liquor.

7. Intoxicating Liquors — Rule that Circumstantial Evidence Alone Will Support Conviction for Violation of Criminal Law is Especially True in Liquor Case. — Rule that circumstantial evidence alone will support conviction for violation of criminal law when it reasonably excludes every hypothesis of defendants' innocence is especially true in prosecution for violating liquor laws.

Appeal from Breckinridge Circuit Court.

H.L. JAMES and GUS BROWN for appellant.

FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.



The appellants, Chester Hudson and Charles Walker, were jointly indicted and together tried in the court below for the offense of unlawfully, within twelve months before the filing of the indictment, manufacturing spirituous and intoxicating liquor, not for sacramental, medicinal, scientific or mechanical purposes. The trial resulted in a verdict by the jury finding each of the appellants guilty as charged and fixing the punishment of each at a fine of $300.00 and imprisonment of ninety days in jail, and from the judgment entered by the trial court in pursuance of that verdict they have each appealed.

The grounds urged by the appellants' counsel for the reversal of the judgment are, that error prejudicial to the substantial rights of each of them was committed by the trial court as follows: First, in overruling their joint and several demurrer to the indictment; second, in overruling the motion made by each of them at the close of the Commonwealth's evidence, and renewed upon the conclusion of the evidence as a whole, for an instruction peremptorily directing the jury to return a verdict of not guilty in behalf of each of the appellants.

As the many offenses charged in the indictment rendered it duplicitous and constituted a misjoinder requiring correction, the filing of the demurrer thereto by the appellants was authorized as a means to that end. But upon the filing of the demurrer and before any action was, or could be, taken by the court thereon the Commonwealth's attorney corrected the misjoinder by electing to prosecute the appellants for only one of the numerous offenses charged in the indictment, viz., that of unlawfully manufacturing intoxicating liquor. And this was the single offense for which they were tried and convicted. It is, however, insisted by counsel for the appellants that as the indictment charged more than one offense against each defendant and did not allege a conspiracy between them to commit them, it was the duty of the court, notwithstanding the correction of the misjoinder by the Commonwealth's attorney's voluntary election to confine the prosecution of the appellants to one of the several offenses charged, to sustain the demurrer; and that the "only way this could have been avoided would have been by the attorney for the Commonwealth's dismissing the indictment as to one of the defendants and dismissing all the charges except the one as against the other defendant."

We are unable to discover any force in this argument. The appellants were jointly indicted as principals in the commission of the offense charged; and if they together, whether as joint undertakers, either as an employe, aider or abettor of the other, or both as employees of another, or others, unlawfully engaged in the manufacture of intoxicating liquor as charged in the indictment, nevertheless in the meaning of the law they were principals in the commission of that offense and each amenable to the punishment prescribed by the statute therefor. Rickman v. Commonwealth, 208 Ky. 655; Cummins v. Commonwealth, 208 Ky. 695. And this would be true whether their joint commission of the offense did, or did not, result from a conspiracy between them. Therefore, in order to convict the appellants of the offense charged it was not, as argued by their counsel, necessary for the indictment to allege, or the Commonwealth to prove, such conspiracy.

We cannot sustain the further contention of appellants' counsel that the appellants were prejudiced in any substantial right by the trial court's refusal to sustain their demurrer because of the failure of the Commonwealth's attorney to dismiss, by an order to that effect, the several offenses therein charged against the appellants, other than the one on which he elected to try them. We deem it sufficient to say that the entering of such an order by that officer following his election of the offense upon which to try the appellants, would have been proper, for the authority to take such action is conferred on the Commonwealth's attorney by section 168, Criminal Code, applicable to the correction of a misjoinder of offenses in an indictment, though the exercise by him of such authority is by its terms left to his discretion, with the proviso, however, that if exercised by him, a demurrer to the indictment because of the misjoinder of offenses shall not be sustained.

It should be said in this connection that though a formal exception was taken by the appellants to the action of the court in overruling their demurrer to the indictment, neither at the time of the Commonwealth attorney's making the election by which their prosecution under the indictment was confined to the one offense therein charged for which they were tried, nor at any time during their trial, did they call to his or the court's attention the fact that he had not, by an order of record, dismissed the several other offenses with which they were charged, or asked that such an order be made. So in view of the...

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