Maggard v. Commonwealth

• Decision Date: 17 October 1941
• Citation: 287 Ky. 787
• Parties: Maggard et al. v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

287 Ky. 787

Maggard et al. v. Commonwealth.

Court of Appeals of Kentucky.

October 17, 1941.

1. Conspiracy. — The legislature in enacting statute penalizing confederating and banding together to intimidate and alarm did not have in mind the intimidation, alarming or disturbing of anything but persons (Ky. Stats., sec. 1241a-1).

2. Conspiracy. — Where so-called accusatory part of indictment charged accused with confederating and banding together to intimidate and alarm without specifying that such confederating and banding together was to intimidate and alarm some person and so-called descriptive part of indictment alleged that accused confederated and banded themselves together and went forth armed for purpose of intimidating and alarming a named person and did in pursuance of conspiracy to confederate and band themselves together alarm named person, indictment when read as a whole was sufficient to state an offense (Ky. Stats., sec. 1241a-1).

3. Indictment and Information. — In considering the sufficiency of an indictment, it will be read and considered as a whole and if when so read and considered, it substantially conforms to the rules of the code in respect to the matters therein pointed out as material and necessary, it will be a good indictment.

4. Conspiracy. — The statute penalizing the offense of confederating for the purpose of intimidating, alarming, disturbing or injuring any person repealed by implication the statute relating to misdemeanor of confederating and banding together and going forth armed or disguised for purpose of intimidating or alarming any person (Ky. Stats., secs. 1223, 1241a-1).

5. Criminal Law. — In prosecution for confederating and banding together to intimidate and alarm named person, jury had the right to believe or disbelieve either set of witnesses (Ky. Stats., sec. 1241a-1).

6. Conspiracy. — Where there was evidence that when accused came to the house of prosecuting witness, each of them stationed themselves beyond a fence post, and one of them had in his possession a rifle and their conduct indicated that they were motivated by a sinister purpose, evidence sustained conviction of confederating and banding together to intimidate and alarm prosecuting witness notwithstanding that there was no direct evidence of a confederating and banding together (Ky. Stats., sec. 1241a-1).

7. Conspiracy. — To establish the offense of confederating and banding together to intimidate and alarm a person, it is not necessary to prove a confederating and banding together by direct evidence but offense may be shown by acts and conduct of the defendants (Ky. Stats., sec. 1241a-1).

8. Criminal Law. — In prosecution for confederating and banding together to intimidate and alarm prosecuting witness, where testimony was admitted that two women had reported to accused that prosecuting witness had shot at two boys in watermelon patch, exclusion of testimony that witness heard prosecuting witness tell another that he had shot two boys in watermelon patch and that the two women had heard prosecuting witness make statement was not prejudicial.

9. Criminal Law. — In prosecution for confederating and banding together, where one of accused denied making a certain statement to prosecuting witness, who was recalled and testified that statement was made and also testified as to contradictory statements made by another of accused, court's admonition that evidence of contradictory statements could not be considered as substantive evidence of guilt of defendant but that jury might consider it as bearing on credibility "of the defendants" as witnesses was not fatally defective because of failure of court to particularize admonition (Ky. Stats., sec. 1241a-1).

10. Conspiracy. — In prosecution for confederating and banding together to intimidate and alarm prosecuting witness, where first instruction authorized conviction if two or more of the accused confederated and banded together as charged and second instruction defined the offense as a corrupt combination and agreement between two or more persons to do by concerted action an unlawful act or to do a lawful act by unlawful means, instructions were not misleading on ground that they would authorize conviction of any one of accused whereas one man could not by himself confederate and band together (Ky. Stats., sec. 1241a-1).

11. Conspiracy. — The offense of "confederating and banding together to intimidate and alarm" a person is a corrupt combination and agreement between two or more persons to do by concerted action an unlawful act or to do a lawful act by unlawful means (Ky. Stats., sec. 1241a-1).

Appeal from Clay Circuit Court.

Wm. Lewis & Son for appellants.

Hubert Meredith, Attorney General, and Guy H. Herdman, Assistant Attorney General, for appellee.

Before Franklin P. Stivers, Judge.

OPINION OF THE COURT BY JUDGE FULTON.

Affirming.

The appellants, James Maggard, Russell Maggard, Henry Clay Lewis, A.C. Howard, Bentley Fields and Roy Fields, were convicted for the crime of confederating and banding together to intimidate and alarm Pit Nicholson in violation of Section 1241a-1, Kentucky Statutes and bring this appeal, the first ground for reversal urged being that the indictment was insufficient.

In what has many times been referred to by this court as the accusatory part of the indictment the appellants were charged with the crime of "confederating and banding together to intimidate and alarm" without specifying that such confederating and banding together was to intimidate and alarm some person or another. In that part of the indictment many times referred to in the opinions of this court as the descriptive part it is alleged that the appellants confederated and banded themselves together and went forth armed for the purpose of intimidating and alarming Pit Nicholson and did in pursuance of the conspiracy confederate and band themselves together and go to the home of Nicholson and intimidate and alarm him by cursing, swearing and threatening and by being drunk and armed with deadly weapons. It is argued that the failure of the so-called accusatory part of the indictment to allege that the appellants confederated and banded together to intimidate a person does not directly and certainly name the offense charged as required by Section 124 of the Criminal Code. As sustaining this argument the cases of Grise et al. v. Commonwealth, 245 Ky. 220, 53 S.W. (2d) 362; Deaton and Boggs v. Commonwealth, 220 Ky. 343, 295 S.W. 167 and Miller v. Commonwealth, 248 Ky. 717, 59 S.W. (2d) 969 are mainly relied on. In the two former cases the so-called accusatory part of the indictment merely charged confederating and banding together and stopped. The indictments were held insufficient because there could be a confederating and banding together for a lawful purpose. In the latter case the so-called accusatory part was under Section 1241a-1 but the descriptive part of the indictment charged an offense under Section 1186 and it was held that the accusatory and descriptive parts of the indictment must apply to the same offense. In the instant case, however, the crime named in the preliminary part of the indictment is confederating and banding together to intimidate and alarm. It is not to be assumed or imagined that the Legislature in enacting Section 1241a-1 had in mind the intimidation, alarming or disturbing of anything but persons. To hold otherwise would amount to an assumption that the Legislature was engaging in an absurdity in the enactment of the statute. Even if the rule followed in the Grise and Deaton and Boggs cases were the true and correct rule, we think the crime with which the appellants were charged was stated with sufficient directness and certainty to satisfy the code provision. It seems that the practice of referring to the "accusatory" and "descriptive" parts of an indictment is somewhat of an anomaly in Kentucky. See note to Section 189 on page 669 of 31 C.J. An indictment is generally referred to as consisting of three principal features, 1) the caption, 2) the charge and 3) the conclusion. 27 A.J. 608 and sometimes a fourth principal feature is enumerated, namely, the commencement, this being the part of the indictment preceding the statement of the offense and showing the county for which the grand jury is acting and that they present the indictment upon oath. See 31 C.J. 601. The custom of referring to the accusatory and descriptive parts of the indictment and considering them as separate and distinct entities has probably resulted in numerous cases holding that the indictment was not sufficiently direct and certain as regards the offense charged by reason of the fact that the court considered only what it called the accusatory part in determining this question. We think the correct rule was stated in Overstreet v. Commonwealth, ...