Maggard v. Commonwealth

• Decision Date: 17 October 1941
• Parties: MAGGARD et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

155 S.W.2d 228

287 Ky. 787

MAGGARD et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

October 17, 1941

Appeal from Circuit Court, Clay County; Franklin P. Stivers, Judge.

James Maggard, Russell Maggard, Henry Clay Lewis, A. C. Howard Bentley Fields and Roy Fields were convicted of confederating and banding together to intimidate and alarm a named person and they appeal.

Affirmed.

Wm Lewis & Son, of London, for appellants.

Hubert Meredith, Atty. Gen., for appellee.

FULTON Justice.

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, Ky.Stats. 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 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, 147 Ky. 471, 144 S.W. 751, 753, wherein the court said: "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". This case was followed in Drury v. Commonwealth, 162 Ky. 123, 172 S.W. 94 and in Smith v. Commonwealth, 284 Ky. 80, 143 S.W.2d 859 and cited with approval in Tackett v. Commonwealth, 285 Ky. 83, 146 S.W.2d 937. When the indictment in the instant case is considered as a whole there can be no doubt that it is direct and certain as to the offense charged, namely, confederating and banding together to intimidate and alarm Pit Nicholson.

It is contended by appellants, however, that since the so-called accusatory part of the indictment alleged a confederating and banding together to intimidate and alarm and since the so-called descriptive part alleged that they confederated and banded together and went forth armed to intimidate Pit Nicholson, they had no way of knowing whether they were charged with the crime denounced by section 1241a-1 or with the misdemeanor denounced by section 1223, that of confederating and banding together and going forth armed or disguised for the purpose of intimidating or alarming any person. There is no merit in this contention since it is obvious that section 1241a-1 repealed section 1223 by implication. See Com. v. Hightower, 149 Ky. 563, 149 S.W. 971. We conclude that the indictment was sufficient and that the artless manner in which it was drawn was not prejudicial to appellants' substantial rights.

The next ground urged for reversal is that the evidence was insufficient to sustain the conviction. This necessitates a brief statement of the evidence. For the Commonwealth the evidence, furnished by Pit Nicholson and his wife and two children, discloses the following state of facts. About 3 o'clock in the afternoon of the crime Nicholson had fired his shotgun to scare some boys out of his watermelon patch. About 5 o'clock in the afternoon the appellants came to the Nicholson home where Nicholson and his wife and four children were sitting on the porch. This porch was about 15 feet from his fence which was a post and wire fence, the posts being about 8 to 12 inches in diameter and about 3 feet high. The appellants did not speak or extend greetings to the Nicholson family according to the community custom...