Jackson v. Com.

• Decision Date: 20 April 1920
• Citation: 220 S.W. 743,187 Ky. 682
• Parties: JACKSON ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

220 S.W. 743

187 Ky. 682

JACKSON ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 20, 1920

Appeal from Circuit Court, Fulton County.

H. J Jackson and others were convicted of offenses, and appeal. Reversed and remanded.

Ed Thomas, of Fulton, for appellants.

Ben S Adams, of Bardwell, D. McNeil, of Hickman, and Chas. I Dawson, Atty. Gen., for the Commonwealth.

SETTLE J.

The appellants, H. K. Jackson, Robert Bills, and Lennie Long, negroes, together with E. B. Binford, a white man, were jointly indicted in the Fulton circuit court for feloniously carrying away and converting to their own use property in the possession of a common carrier, an offense denounced by Kentucky Statutes, § 1201b. Binford was accorded a separate trial, and acquitted by the verdict of the jury. Thereafter the appellants were tried together, resulting in a verdict from the jury, finding Jackson and Bills guilty of grand larceny and fixing their punishment at confinement in the penitentiary for a term of one year each; Lennie Long guilty of petty larceny, and fixing his punishment at confinement in jail 30 days. Appellants filed in the court below a joint and several motion and grounds for a new trial, but the motion was overruled as to each; to obtain a review of which ruling and others made by the court during the progress of the trial, they prosecute this appeal. The statute under which the indictment was found is as follows:

"That any person who shall open any box, barrel or other package containing personal property of any kind while in the possession of a common carrier for transportation or delivery, for the purpose of appropriating the contents thereof to his own use, or to the use of another, or who shall appropriate to his own use, or to the use of another, any property in the possession of a common carrier for transportation or delivery, shall be guilty of a felony, and shall be punished by confinement in the penitentiary for not less than one nor more than five years."

Appellants assign as error the overruling by the trial court of the demurrer filed by them to the indictment; it being their contention that it charged two distinct and unrelated offenses, viz. one the offense denounced by the statute, supra, and the other that of grand larceny, for which reason, it is insisted, the demurrer thereto should have been sustained, and the commonwealth required to elect which of the two offenses it would try appellants for. The fundamental error in this contention lies in its assumption that there are two offenses charged in the indictment, when, in fact, it charges but one, which is the offense denounced by the statute supra. The indictment contains two counts, the first of which charges Binford and these three appellants as principals with the commission of the crime therein defined, viz. "the taking, carrying and appropriating to their own use property in the possession of a common carrier." That is that they "did unlawfully, willfully, feloniously, and with force and arms take, steal, and carry away one suit case and other personal property (i. e., contents of the suit case) the name of which is unknown to this grand jury; and said property was of value and in the possession of a common carrier, to wit, on a passenger train of the Illinois Central Railroad Company No. 133, and said property was in the custody of the carrier for transportation and delivery, and the same was stolen with the fraudulent and felonious intent to convert same to their own use, and to deprive Lonnie Scruggs, the owner and the common carrier, Illinois Central Railroad Company, permanently thereof."

In the second count of the indictment it is charged, in language substantially the same as that employed in the first count in setting forth the acts constituting the crime, that Binford and the appellant Bills were the principals in its commission, and the appellants Jackson and Long, accomplices. It is patent, however, that the indictment charges but a single offense; and, although it is awkwardly worded and some of its verbiage might well have been omitted, its allegations follow the...