Hudspeth v. Commonwealth

• Citation: 195 Ky. 4,241 S.W. 71
• Parties: HUDSPETH v. COMMONWEALTH.
• Decision Date: 23 May 1922
• Court: Court of Appeals of Kentucky

241 S.W. 71

195 Ky. 4

HUDSPETH v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 23, 1922

Appeal from Circuit Court, Calloway County.

Asher Hudspeth was convicted of larceny of fowls, and he appeals. Reversed and remanded, with directions to sustain demurrer to the indictment.

Joe Lancaster, of Murray, for appellant.

Chas I. Dawson, Atty. Gen., and Thos B. McGregor, Asst. Atty Gen., for the Commonwealth.

HURT C.J.

The appellant, Asher Hudspeth, was attempted to be indicted for a violation of section 1201c, Ky. Stats. He interposed a general demurrer to the indictment, which being overruled he was put upon trial and convicted. He has appealed, and, while he relies upon several alleged errors of the court as grounds for a reversal of the judgment, it will only be necessary to consider the first, or the one committed by overruling the demurrer to the indictment.

The ground whereon it is insisted that the indictment is defective is that it does not charge that the fowls which the appellant was accused of taking were taken and carried away from the possession of the parties alleged to have been the owners, and converted to the use of the appellant, without the consent or against the will of the alleged owners. The indictment, which otherwise appears sufficient, contains no averment that the taking and carrying away of the fowls from the persons alleged to be the owners, with the intention on the part of the appellant to permanently deprive them of the fowls, was without the consent or against the will of the owner, nor any allegation in other language conveying that meaning, and, if such is a necessary averment in an indictment for the offense denounced in section 1201c, supra it failed to state a public offense under that statute, and the demurrer should have been sustained.

The statute in question is in language as follows:

"If any person shall steal chickens, turkeys, ducks or other fowls of the value of $2 or more, he shall be confined in the penitentiary not less than one nor more than five years."

It is insisted, that inasmuch as the crime of which appellant was accused is a statutory offense, and that an indictment in the language of the statute will be sufficient when one is indicted for such offense, and that the statute does not require, to constitute a violation of it, that the property should be taken from the possession of the owner and converted without his consent, and that it is unnecessary to charge the want of consent of the owner to the taking in the indictment. The principle contended for as a general rule is sound, and is applicable wherever an offense is created by a statute, which also sets out and defines the elements necessary to constitute the offense, but, if a statute merely prescribes a punishment for an offense at the common law, the indictment must charge all the facts necessary to constitute the offense as defined by the common law. Mitchell v. Commonwealth, 88 Ky. 349, 11 S.W. 209, 10 Ky. Law Rep. 910.

Furthermore, in an indictment for a statutory offense, if by following the language of the statute every fact necessary to constitute the offense is charged or necessarily implied from the language used, the indictment will be sufficient, but, if by following the language of the statute the above stated aim is not attained, the indictment is not sufficient. Commonwealth v. Stout, 7 B. Mon. 247; Commonwealth v. White, 109 S.W. 324, 33 Ky. Law Rep. 324; Commonwealth v. Huff, 141 Ky. 459, 132 S.W. 1023; Commonwealth v. Lowe, 116 Ky. 335, 76 S.W. 119, 25 Ky. Law Rep. 534; Carroll v. Commonwealth, 164 Ky. 604, 175 S.W. 1043.

It will be observed that section 1201c, supra, does not create a new offense; it merely prescribes a punishment for an already existing offense. It only raises what had theretofore been a misdemeanor to a felony. It does not prescribe what facts must exist to constitute the felony, except that the fowls must be of the value of $2 or more, and it does not define the necessary elements which must exist to constitute a stealing. Section 1194, Ky. Stats., is a general statute prescribing a punishment for larceny, and provides that a larceny of goods, money, chattels, or other property of the value of $20 or more shall be punished by confinement in the penitentiary for a period not less than 1 nor more than 5 years. Then section 1243 prescribes that the stealing of a hog of less value than $4, or the larceny of money, goods chattels, or other property of less value than $20, shall be punished by confinement in the county jail for not less than one nor more than 12 months, if a male, but if the person guilty be a female by imprisonment not exceeding 30 days. This statute merely prescribes what the punishment shall be for the common-law offense of petit larceny. Section 1195, Ky. Stats., prescribes the punishment for stealing a horse, mule, jack, or jennet at confinement in the penitentiary not less than 2 nor more than 10 years, and section 1196, Ky. Stats., prescribes the punishment for stealing a hog of the value of $4 or more at confinement in the penitentiary not less than one nor...