Hudson v. Com.

Decision Date07 May 1926
Citation214 Ky. 578,283 S.W. 1034
PartiesHUDSON ET AL. v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Breckenridge County.

Chester Hudson and another were convicted of manufacturing spirituous and intoxicating liquor, not for sacramental, medicinal scientific, or mechanical purposes, and they appeal. Affirmed.

H. L James, of Elizabethtown, and Gus Brown, of Hardinsburg, for appellant.

Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

The appellants, Chester Hudson and Charles Walker, were jointly indicted and together tried in the court below for the offense of unlawfully, within 12 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, and imprisonment of 90 days in jail. And from the judgment entered by the trial court in pursuance of that verdict each has 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 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 offenses charged; and, if they together, whether as joint undertakers, either as an employee, aided or abetted 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, 271 S.W. 701, 208 Ky. 655; Cummins v. Commonwealth, 271 S.W. 1044, 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 in brief 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 a 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 attorneys 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 facts that the election correcting the misjoinder of offenses contained in the indictment was made, and that such error, if any, as was committed by the trial court in overruling the demurrer to the indictment was cured by its confining the evidence to the particular offense for which the commonwealth elected to try the appellants, and also by its instructions to the jury, which limited their consideration of the guilt or innocence of the appellants to that one offense, we are clearly of the opinion that they were not prejudiced in any of their substantial rights by the failure of the court to sustain the demurrer to the indictment. And to hold otherwise would require us to ignore section 353, Criminal Code, which permits the reversal by this court of a judgment of conviction only for errors of law appearing on the record, "when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby." This conclusion is fully sustained by the following cases and others that might be cited, all decided by this court: Smith v. Commonwealth, 60 S.W. 531, 109 Ky. 685, 22 Ky. Law Rep. 1349; Dotson v. Commonwealth, 265 S.W. 28, 204 Ky. 658; Vanover v. Commonwealth, 261 S.W. 604, 202 Ky. 813; Davis v. Commonwealth, 256 S.W. 429, 201 Ky. 300; Esterling v. Commonwealth, 257 S.W. 28, 201 Ky. 485; Bowling v. Commonwealth, 237 S.W. 381, 193 Ky. 642; Lovelace v. Commonwealth, 236 S.W. 567, 193 Ky. 425; Hubbard v. Commonwealth, ...

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