Miller v. Commonwealth
| Decision Date | 25 April 1933 |
| Citation | 248 Ky. 717 |
| Parties | Miller v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Indictment and Information. — Indictment must charge, in accusatory part, crime for which it is intended to prosecute accused, and, in descriptive part, must state facts constituting offense so charged.
2. Indictment and Information. — Indictment under statute creating offense of confederating or banding together for felonious purpose should substantially employ language of statute, or give brief description of offense in statutory language, or set forth particular acts constituting offense .
Ky. Stats. sec. 1241a-1 provides that, if two or more persons confederate or band themselves together for purpose of intimidating, alarming, or to rescue any person or to do any felonious act, they or either of them shall be guilty of felony. The statute does not name the offense, but merely describes it. An indictment under such statute failing in accusatory part either to follow statute or to give brief general description in its language or to set forth particular acts constituting offense is demurrable.
3. Indictment and Information. — Indictment held demurrable as charging in accusatory part conspiracy to defraud bank and in descriptive part of committing substantive offense denounced by statute against defrauding bank or altering or making false entries in bank's books (Ky. Stats., secs. 1186, 1241a-1).
4. Criminal Law. — Burden was on accused to prove ground on which he based motion for change of venue.
5. Criminal Law. — Where accused's uncontradicted petition for change of venue on ground of state of public feeling in county against him complies with statute and is supported by required affidavit, accused is entitled to change of venue, and court has no discretion.
6. Criminal Law. — Where accused files verified petition supported by requisite affidavits for change of venue, it must be overcome by affidavits or testimony of witnesses, and mere denial in form of statement by commonwealth's attorney is insufficient.
7. Criminal Law. — Granting or refusing change of venue is within court's discretion, where there is evidence both in support and in resistance of motion.
8. Criminal Law. — Ordinarily refusal to grant change of venue will not be disturbed without clear showing of abuse of discretion.
9. Criminal Law. — Whether accused shall have change of venue or whether special venire shall be summoned from another county rests largely in trial court's discretion.
10. Criminal Law. — Where petition for change of venue accompanied by supporting affidavits is controverted, appellate court gives great weight to trial court's discretion.
11. Criminal Law. — Accused, however guilty, or whatever nature of crime charged against him, is entitled to fair and impartial trial.
12. Criminal Law. — In prosecution for conspiracy to defraud bank, wherein accused's petition for change of venue, supporting affidavits, and trial court's statement showed intense state of feeling in county against accused and codefendants, mere summoning of jury from another county held not to afford accused right to which he was entitled.
Accused's petition for change of venue disclosed that sheriff, county treasurer, master commissioner, trustee of jury fund, jailer, county judge, assessor, and 1,200 residents of county were depositors in bank when it was charged in indictment that bank failed because of alleged fraud of accused and his codefendants; that there had been previous trials growing out of bank's failure; that 1,200 depositors in mass convention adopted resolution calling on citizenship and authorities for justice; and order of trial judge overruling accused's motion for change of venue recited that court believed that every man and woman in county of sufficient intelligence to sit on jury knew all about prosecutions and had formed opinion thereon, and therefore ordered summoning of 80 qualified jurors from another county for service in such prosecution. Moreover, response of commonwealth's attorney denying allegations of petition for change of venue was not verified, and affidavits in support thereof did not deny facts alleged in petition for change of venue and supporting affidavits, but were more in nature of confession and avoidance.
See, also, 241 Ky. 221, 43 S.W. (2d) 687; 242 Ky. 122, 45 S. W. (2d) 853.
Appeal from Rockcastle Circuit Court.
C.C. WILLIAMS for appellant.
BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.
Reversing.
R.H. Miller was indicted and convicted in the Rockcastle circuit court, and his punishment fixed at three years in the penitentiary. The decisive questions are: (a) The sufficiency of the indictment when tested by a demurrer; and (b) the propriety of the ruling of the trial court on the motion for a change of venue. The accusatory portion of the indictment endeavors to name the offense defined by section 1241a-1 Ky. Stats.
The instructions of the court authorized the jury to find Miller guilty and fix his punishment as prescribed by this section. The descriptive portion of the indictment sets forth facts constituting the offense defined by section 1186, Ky. Stats.
Section 1241a-1 reads:
"If any two or more persons shall confederate or band themselves together for the purpose of intimidating, alarming * * * or to rescue any person * * * or to do any felonious act, they, or either of them, shall be deemed guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than five years." In section 1186 it is written:
"If any officer or employee of any joint stock company, bank or corporation shall, with the intention of cheating or defrauding the joint stock company, bank or corporation, or any person doing business with it, erase, mutilate or alter any book or paper or evidence of debt, or any part thereof, owned by or in custody or under the control of the joint stock company, bank or corporation, or shall destroy the same, or shall make any false entry, or omit to make an entry in any such book or paper, he shall be confined in the penitentiary not less than two nor more than ten years."
In naming the offense in the indictment, this language is employed:
"The commonwealth of Kentucky accuses F.E. Miller, R.H. Miller, H.C. Taylor, W.H. Davis and Mrs. M.J. Miller of the crime of unlawfully and feloniously confederating or banding together in a conspiracy to defraud the People's Bank of Mt. Vernon, Rockcastle county and others and the public generally."
This language manifests an attempt to name the offense designated by section 1241a-1. It also shows that the purpose of the grand jury was to charge a confederating or banding together, under section 1241a-1, "to defraud the People's Bank" under section 1186. This view of the language quoted from the indictment is substantiated by the allegations in the descriptive portions thereof, setting out specifically the acts of the defendants as constituting the offense. An indictment must charge in the accusatory part the crime for which it is intended to prosecute the accused, and, in the descriptive part, it must state the facts which, if established by the proof, constitute the offense charged. Acree v. Com., 243 Ky. 216, 47 S.W. (2d) 1051, and cases cited. Section 1241a-1 creating the offense of confederating or banding together, does not give it a name, but merely describes it. An indictment thereunder in naming the offense should substantially employ the language of the statute, or should give a brief general description of the offense in the language of the statute, or set forth the particular acts which constitute it. Commonwealth v. Slaughter, 12 Ky. Law Rep. 893; Daviess Gravel Road Co. v. Com., 14 Ky. Law Rep. 812; Commonwealth v. Smith, 6 Bush, 263; subsection 4 of section 124, Criminal Code. An indictment failing in the accusatory part, either to follow the statute or give a brief general description in its language or set forth the particular acts constituting the offense, is demurrable. The accusatory part of the indictment not only must name the offense charged, but it and the descriptive part must name the same offense. Gregory v. Com., 226 Ky. 617, 11 S.W. (2d) 432; Commonwealth v. Dishman, 232 Ky. 686, 24 S.W. (2d) 568; Patrick v. Com., 225 Ky. 202, 7 S.W. (2d) 1039; Grise et al. v. Com., 245 Ky. 220, 53 S.W. (2d) 362; Deaton and Boggs v. Com., 220 Ky. 343, 295 S.W. 167; Acree v. Com., 243 Ky. 216, 47 S.W. (2d) 1051; Lynch v. Com., 248 Ky. 210, 58 S.W. (2d) 408. In every indictment charging confederating or banding together under section 1241a-1 to commit an offense designated by section 1186, it is essential and required that both the accusatory and descriptive portions thereof name and describe the same offense.
The sufficiency of indictments under section 1241a-1 et seq. was determined by this court in Gregory v. Com., Acree v. Com., and Harr v. Com., 245 Ky. 278, 53 S.W. (2d) 575, and Grise v. Com., supra. They are applicable and controlling in the present case, and, when tested by them, the indictment herein does not name in the accusatory part a public offense designated by either section 1241a-1 or section 1186, Ky. Statutes.
A consideration and disposition of the action of the trial court in overruling the motion for a change of venue require us to review the facts. Miller filed his petition setting forth grounds as he conceived them, for a change of venue, supported by the affidavits of J.J. Felton and Neal Parrot. The commonwealth's attorney filed a response, traversing the statements of the petition. In support thereof, the affidavits of Hensel, Poynter, Hughes, and Mink were filed. Thereupon the motion was overruled and an order entered directing a jury summoned from another county. The latter order was...
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