Hutchcraft v. Com.

• Decision Date: 23 June 1922
• Citation: 242 S.W. 580,195 Ky. 591
• Parties: HUTCHCRAFT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

242 S.W. 580

195 Ky. 591

HUTCHCRAFT v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 23, 1922

Appeal from Circuit Court, Fulton County.

Dee Hutchcraft was convicted of housebreaking, and he appeals. Affirmed.

Hester & Seay, of Mayfield, for appellant.

Charles I. Dawson, Atty. Gen., and Thomas B. McGregor, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

On his trial in the Fulton circuit court, under an indictment charging him with housebreaking as denounced by section 1162 of the Statutes, the appellant, Dee Hutchcraft, was found guilty, and his punishment fixed at confinement in the state penitentiary for two years. His motion for a new trial was overruled, and he appeals, urging as grounds for reversal (1) Insufficiency of the indictment; (2) error in the instructions; and (3) insufficiency of the evidence to support the verdict.

1. Under this ground it is insisted (a) that the indictment is misleading, in that it does not name the offense in its accusatory part with the directness and certainty required by sections 122 and 124 of the Criminal Code of Practice; and (b) that in its charging part it alleges the offense of grand larceny in addition to the attempted one of housebreaking and it is therefore bad for duplicity. The statute (section 1162) says:

"If any person * * * shall feloniously break any dwelling house or any part thereof, * * * and feloniously take away anything of value, although the owner or any person may not be there, he shall be confined in the penitentiary not less than two nor more than ten years."

The indictment accuses appellant "of the crime of breaking into a dwelling house of C. L. Walker committed in the manner and form as follows, to wit." It then avers that before the finding of the indictment he did break and enter the dwelling house of Walker unlawfully and feloniously and with the felonious intent to take, steal and carry away therefrom articles of value, and that he did do so, and some of the articles so taken are named in the indictment, and others are stated to be unknown to the grand jury, but all of them were of the value of more than $20, and were the personal property of C. L. Walker and the members of his family. It is difficult to see wherein the requirements of the sections of the Criminal Code, supra, were not complied with. Surely it cannot be contended that the language of the indictment is not sufficient "to enable a person of common understanding to know what is intended," or that its certainty is insufficient "to enable the court to pronounce judgment, on conviction, according to the right of the case." It is also clear, according to our view, that the indictment at least substantially complies with section 124 in naming the offense charged, which is housebreaking, and the creation of which was intended to and does enlarge the power of the court to punish those guilty of offenses closely related to the common-law offense of burglary, but technically not coming within its definition. We are convinced that the indictment is not subject to be assailed for the reason indicated, since it was amply sufficient to inform the defendant of the offense with which he was charged, and contention (a) must be overruled. The same disposition must also be made of contention (b), since the precise point was adversely determined by this court in the cases of Farris v. Commonwealth, 90 Ky. 637, 14 S.W. 681, 12 Ky. Law Rep. 592, and Thomas v. Commonwealth, 150 Ky. 374, 150 S.W. 376, in which it was held that proof of the actual stealing of the property from the unlawfully entered building was evidence of the intent with which the entry was made.

2. The matters complained of under this ground were more favorable to the defendant than he was entitled to. The complained of instruction required the jury to believe beyond a reasonable doubt that the defendant was guilty of breaking and entering the dwelling house of Walker with the necessary felonious intent, and that he did carry therefrom property of the total value of $20 or more, when, under the statute creating the offense, it is only necessary that property of any value should be taken. The defendant, therefore, cannot...