Merdith v. Com.

• Decision Date: 24 April 1923
• Parties: MERDITH v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

252 S.W. 894

199 Ky. 544

MERDITH v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 24, 1923

Rehearing Denied June 22, 1923.

Appeal from Circuit Court, Edmonson County.

Turley Merdith was convicted of unlawfully manufacturing intoxicating liquor, and he appeals. Affirmed.

Milton Clark, of Brownsville, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

The grand jury of Edmonson county, March 26, 1923, returned against the appellant, Turley Merdith, and his brother Eugene Merdith, an indictment, the accusatory part of which charges them with the offense of "unlawfully operating an illicit or moonshine still." In its description of the offense meant by the accusation the indictment alleges that the defendants "did unlawfully operate an illicit or moonshine still by then and there manufacturing and attempting to manufacture spirituous liquors thereon" and further that the still or appliance so operated is "commonly and exclusively used in the manufacture of illicit or moonshine whisky for other than medicinal, mechanical, scientific or sacramental purposes in the commonwealth of Kentucky."

The appellant, Turely Merdith, filed a demurrer to the indictment, which the circuit court overruled. When the case was called for trial, he made a motion for a separate trial; and, also, for a continuance of the case because of the alleged absence of certain witnesses whose names, together with the facts to which it was claimed they would testify, were set forth in his affidavit filed in support of the latter motion. Both motions were overruled, to which rulings, as well as that on the demurrer, the appellant excepted. The joint trial of the appellant and his codefendant, Eugene Merdith, for the offense charged in the indictment, resulted in a verdict from the jury finding each of them guilty, and fixing the punishment of the appellant, Turley Merdith, at a fine of $500 and six months' imprisonment in jail, and that of the defendant Eugene Merdith at a fine of $400 and three months' imprisonment in jail.

The former filed a motion and grounds for a new trial, assigning as error the rulings of the trial court upon the demurrer and motions above mentioned, and, in addition, error alleged to have been committed by it in instructing, and refusing to properly instruct, the jury. The overruling of the appellant's motion for a new trial resulted in the granting to him and his prosecution of the present appeal from the judgment of conviction, to which the defendant Eugene Merdith is not a party.

The most serious question presented on the appeal is that raised by the appellant's complaint of the indictment; it being insisted that his demurrer to it should have been sustained because the offense of which it accuses the appellant is not made a public offense by the statute under which the indictment was found, and that the alleged unlawful acts of the defendants set forth in the descriptive part of the indictment do not constitute the offense named in the accusatory part thereof. It is true that the statute (chapter 33, Acts General Assembly 1922) under which the indictment was found does not in terms declare the operating of an illicit still an offense; but by section 3 thereof the unlawful manufacture of intoxicating liquors, which must be done by means of a still, and hence, by its operation, is made an offense; and the acts of the defendant set forth in the descriptive part of the indictment allege and show the unlawful manufacture of intoxicating liquor by him, effected through his operation of the still. The offense thus described, viz. that of unlawfully manufacturing intoxicating liquor, is in fact but the same as named and charged in the accusatory part of the indictment. The erroneous naming of an offense in the accusatory part of the indictment should not be allowed to invalidate it, where the indictment's description of the defendant's acts constituting the offense is sufficient to identify it as the one intended to be charged, though inaptly named, in the accusatory part of the indictment.

Criminal Code, § 122, thus defines the requisites of an indictment:

"The indictment must contain--

1. The title of the prosecution, specifying the name of the court in which the indictment is presented and the names of the parties.

2. A statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable * * * the court to pronounce judgment, on conviction, according to the right of the case."

It is also provided by section 124, Crim. Code:

"The indictment must be direct and certain as regards--

1. The party charged.

2. The offense charged.

3. The county in which the offense was committed.

4. The particular circumstances of the offense charged, if they be necessary to constitute a complete offense."

It is further provided by section 136, Crim. Code:

"The words used in a statute to define an offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used."

But the rule prescribed for construing and applying the provisions of the sections, supra, is contained in section 137, Crim. Code, which declares:

"The words used in an indictment must be construed according to their usual acceptation in common language, except words and phrases defined by law, which are to be construed according to their legal meaning."

In Overstreet v. Commonwealth, 147 Ky. 471, 144 S.W. 751 one of the questions involved was as to the sufficiency, on demurrer, of an indictment, that in the...