McGeorge v. Commonwealth

• Decision Date: 10 February 1931
• Citation: McGeorge v. Commonwealth, 237 Ky. 358, 35 S.W.2d 530 (Ky. 1931)
• Parties: McGeorge v. Commonwealth.
• Court: Supreme Court of Kentucky

Page 358

237 Ky. 358

McGeorge v. Commonwealth.

Court of Appeals of Kentucky.

Decided February 10, 1931.

1. Obstructing Justice. — Offense of obstructing an officer may be committed by use of either violence, force, or threats, and indictment is good that charges any one of such terms (Ky. Stats., sec. 1148a-7).

Ky. Stats., sec. 1148a-7 makes it unlawful for any person by violence, force, or threats to alarm, disturb, or hinder or obstruct, or intimidate officer in matter of his official action or in discharge of his duty, or attempt so to do.

2. Indictment and Information. — Indictment for statutory offense need only substantially follow wording of statute.

3. Obstructing Justice. — Person need not submit to arrest unless informed of officer's intention to arrest and offense with which he is charged (Criminal Code of Practice, sec. 39).

4. Obstructing Justice. — Conviction for obstructing or intimidating officer requires proof that accused intended to and did deter officer in performance of his official duties in manner mentioned in statute (Ky. Stats., sec. 1148a-7).

5. Obstructing Justice. — Instruction to convict if defendant with force obstructed and intimidated officer and cursed and resisted arrest held erroneous in using words not descriptive of offense and failing to submit question of intention of accused (Ky. Stats., sec. 1148a-7).

6. Obstructing Justice. — Instruction should not authorize conviction for obstructing officer if accused committed specific acts, but should submit question whether by commission of such acts accused violated statute (Ky. Stats., sec. 1148a-7).

7. Obstructing Justice. — "Force" used to obstruct officer implies both exercise and application of physical power, and does not include cursing (Ky. Stats., sec. 1148a-7).

8. Obstructing Justice. — In prosecution for obstructing an officer, attempting arrest for drunkenness, correct charge, stated (Ky. Stats., sec. 1148a-7, Criminal Code of Practice, sec. 39).

Where accused was charged with obstructing and intimidating an officer who attempted to arrest accused for drunkenness, court should charge jury to convict if they delieved beyond reasonable doubt that accused was drunk in presence of officer; that officer informed accused of his intention to arrest, and of offense charged against accused, or that accused knew of officer's intention to arrest and offence charged, and that officer arrested or attempted to arrest accused, and accused forcibly and with intention so to do and did thereby obstruct and intimidate officer by jerking away and resisting arrest.

Appeal from Estill Circuit Court.

H.E. HAY, and S.H. RICE for appellant.

J.W. CAMMACK, Attorney General, and HOWARD SMITH GENTRY for appellee.

OPINION OF THE COURT BY COMMISSIONER CREAL.

Reversing.

The appellant was convicted in the Estill circuit court under an indictment charging violation of that portion of section 1148a-7 of the Kentucky Statutes relating to officials in the discharge of their duties, and his punishment fixed at confinement in the state penitentiary for a period of two years.

He is here complaining that the court erred (1) in overruling the demurrer to the indictment and (2) in instructions given to the jury.

That portion of the section of the Statutes under consideration, which is pertinent, is as follows: "It shall be unlawful for any person or persons, individually or collectively . . . by violence, force or threats to alarm, disturb or hinder or obstruct, or intimidate any officer of the Commonwealth of Kentucky, in the matter of his official action or in the discharge of his duty; or attempt so to do . . . and any person or persons violating any provision of this section shall be punished by confinement in the state penitentiary for not more than twenty-one years or by a fine of not more than ten thousand dollars ($10,000.00) or both such confinement and fine."

Appellant's counsel argue that the indictment is bad in that it does not follow the language of the statute, pointing out that the word "violence" is not used in either the accusative or descriptive part of the indictment. We do not think this objection well taken, as the offense may be committed by the use of either violence, force, or threats, and an indictment is good that charges any one or more of the terms used in the statute.

In an indictment for a statutory offense, it is only required that the indictment shall substantially follow the wording of the statute. The indictment measures up to that requirement; hence the court did not err in overruling the demurrer.

Appellant's contention that the court erred in instructing the jury presents a more serious question.

The evidence for the...