Jones v. Commonwealth
| Decision Date | 06 May 1938 |
| Citation | 273 Ky. 444 |
| Parties | Jones v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Indictment and Information. — Both the accusatory and descriptive parts of an indictment must be sufficient and, if either is defective, the indictment is bad.
2. Indictment and Information. — An indictment for voluntary manslaughter accusing defendant of making a violent assault upon a named person on a public highway was not defective as varying
from descriptive part of indictment which, in addition to substantially identical charges, indicating that assault was by automobile, since accusatory and descriptive paragraphs were both within statute requiring indictment to be certain as to party and offense charged (Criminal Code of Practice, sec. 124).
3. Indictment and Information. — While hypercritical and mere technical deficiencies in indictments are disregarded and such instruments are liberally construed by dispensing with ancient exactness and formality, an indictment must substantially conform to established principles and rules of criminal pleading (Criminal Code of Practice, sec. 124).
4. Automobiles. — Evidence that motorist while intoxicated and driving at an excessive speed, struck a pedestrian walking on the left side of a highway, held to sustain conviction of voluntary manslaughter although no one saw automobile hit pedestrian.
5. Criminal Law — In prosecution of a motorist for voluntary manslaughter, ruling that jury should disregard testimony of a sheriff who arrived after accident, in regard to death of persons other than one on which prosecution was based, except as to matters not disclosed by eyewitnesses, was not prejudicial.
6. Automobiles. — In prosecution of a motorist for voluntary manslaughter, evidence tending to show that motorist had been drinking was admissible as showing intoxication, which was material to charge of reckless and wanton driving.
7. Automobiles. — In prosecution of a motorist for voluntary manslaughter, whether motorist struck a pedestrian while driving recklessly and wantonly was for jury.
8. Automobiles. — In prosecution of a motorist for voluntary manslaughter, an instruction that, if jury could not believe beyond a reasonable doubt from evidence that motorist was guilty of voluntary manslaughter as set out in a previous instruction or of involuntary manslaughter as similarly set out, and believed that killing was accidental, then they would find for motorist, was not erroneous.
Appeal from Perry Circuit Court.
JESSE MORGAN and PAUL GROSS for appellant.
HUBERT MEREDITH, Attorney General, and GUY H. HERDMAN, Assistant Attorney General, for appellee.
Affirming.
The appellant, Herman Jones, was, upon his trial on an indictment charging him with the crime of voluntary manslaughter, convicted and his punishment fixed at 15 years' confinement in the penitentiary.
He appeals, urging for reversal, of the judgment: (1) The insufficiency of the indictment and that his demurrer thereto should have been sustained; (2) the insufficiency of the evidence to authorize submission of the case to the jury; (3) that the admission of certain evidence introduced was erroneous; and (4) he challenges the propriety of the instructions.
Turning our attention to the consideration of these objections in the order presented, the first is that the indictment is defective in its accusatory part and that therefore it cannot be cured by the descriptive part under the well-settled rule that both the accusatory and descriptive parts of an indictment must be sufficient and, if either is defective, the indictment is bad.
The accusatory part of the indictment, thus assailed as defective, says:
The accusation thus made is followed by its descriptive part, charging the manner in which the defendant committed the charged crime of manslaughter, by his "unlawfully, willfully, feloniously, and in such a negligent, careless, reckless and wanton manner that his said act was reasonably calculated to endanger the life of another, drive, run and direct said automobile upon, against and over the said Mollie Reeves," thereby striking and killing her.
The appellant, in support of his contention that the accusatory part of the indictment is defective, cites and relies upon the case of Privett v. Commonwealth, 233 Ky. 471, 26 S.W. (2d) 3, 4. In that case the indictment in its accusatory paragraph named the offense of arson, while the descriptive part of the indictment charged the defendant with the commission of one of the offenses denounced by section 1168, Kentucky Statutes, namely, that of willfully and maliciously burning the storehouse of another. The court, in considering the variance between the offense named in the indictment's accusatory part and that set out in its descriptive part, as being different offenses, said:
Testing the sufficiency of the indictment here before us by the criterion announced in these cases, we are of the opinion that the trial court properly overruled appellant's demurrer challenging its sufficiency upon such ground, for the reason that, we conclude, the requirements of section 124, Criminal Code of Practice, that an indictment must be direct and certain as regards, first, the party charged and second, the offense charged, were satisfied by the charges made by each paragraph of the indictment here criticized, as it appears from a reading of the accusatory and descriptive paragraphs of the indictment, set out supra, that they are almost identical in their terms describing the offense, both as charged and committed, where the first accuses the appellant with committing the crime of the voluntary manslaughter of Mollie Reeves, "by unlawfully, willfully, feloniously and in a negligent, reckless, careless and wanton manner" making a violent assault on her by "then and there driving, controlling, managing and directing a certain automobile" and the latter or descriptive part of the indictment charges that the appellant did "unlawfully, willfully, feloniously, and in such a negligent, careless, reckless and wanton manner that his said act was reasonably calculated to endanger the life of another, drive, run and direct said automobile over the said Mollie Reeves," thereby killing her.
The language of the opinion in Middleton v. Commonwealth 226 Ky. 220, 10 S.W. (2d) 812, 813, is here appropriate. There we said:
"While we have no intention to depart from the modern rule of disregarding hypercritical and mere technical deficiencies in indictments, or to be out of harmony with the trend of liberal construction of such instruments by dispensing with ancient exactness and formality, nevertheless an indictment must substantially conform to established principles and rules of criminal pleading."
Further, in the case of Gregory v. Com., 226 Ky. 617, 11 S.W. (2d) 432, 433, the appellants were jointly indicted for the crime of sedition. Each demurred to the indictment, which was in each case overruled. Upon appeal, the ruling was reversed as improper, upon the ground that the accusatory and descriptive parts of the indictment did not charge the same offense, the language of the opinion being as follows:
We are of the opinion that to here undertake to search and seek with a supercritical eye and interest for a discrepancy or variance between the offenses charged and described in the two paragraphs, so reasonably susceptible of being interpreted as describing the one and the same offense, would be indeed a magnifying and stressing of "hypercritical and mere technical deficiencies" in the...
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