Miller v. Commonwealth

• Decision Date: 25 April 1933
• Citation: 248 Ky. 717,59 S.W.2d 969
• Parties: MILLER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

59 S.W.2d 969

248 Ky. 717

MILLER v. COMMONWEALTH.

Court of Appeals of Kentucky

April 25, 1933

Appeal from Circuit Court, Rockcastle County.

R. H Miller was convicted under an indictment charging conspiracy to defraud a certain bank and others and the public generally, and he appeals.

Reversed.

See also, 241 Ky. 221, 43 S.W.2d 687; 242 Ky. 122, 45 S.W.2d 853.

C. C Williams, of Mt. Vernon, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty. Gen., for the Commonwealth.

RICHARDSON Justice.

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. St.

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. St.

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 entered in this language: "It appearing to the court that civil actions and criminal prosecutions growing out of the insolvency of the People's Bank of Mt. Vernon, have occupied the major part of four terms of this court, that at the time of its suspension there were 1,200 depositors of said bank in Rockcastle county, that the matters contributing to the bankruptcy and failure of said bank have attained county wide notoriety, that this court on similar prosecution has mADe a good, faithful effort to make up a jury; that the court believes that every man and woman in Rockcastle county of sufficient intelligence to sit on a jury know all about these prosecutions and have formed an opinion on them, it is ordered that Charles Carter and Robert Abney summon eighty qualified jurors from Laurel county for service in these prosecutions." (Italics ours.)

The petition of the defendant discloses that the sheriff, county treasurer, master commissioner, trustee of the jury fund jailer, county judge, assessor, and 1,200 residents of the county, were depositors in the People's Bank of Mt. Vernon at the time it is charged in the indictment it failed because of the alleged fraud of R. H. Miller and his codefendants; that there hAD been previous trials in the Rockcastle circuit court, growing out of the bank's failure; that the 1,200 depositors in mass convention hAD ADopted resolutions wherein the citizenship of the county were called upon "to blend their voice in an appeal for absolute vindication of the higher aims of the constituted authority," an appeal was therein mADe "to the citizenship of Rockcastle county for their support in the cause of such far reaching importance as not only to involve their own interest but of interest to the generations yet unborn." The resolutions mADe an appeal to the circuit judge "for the use of the higher power of his office," and urged him to "assert such powers against the perpetrators of this deplorable crime, commensurate with the crime committed." Also an appeal was mADe to the commonwealth's attorney "to prosecute the cases growing out of the failure of the bank." A further appeal was mADe to the Attorney General of the state "for the aid and assistance of the commonwealth" in "the effort to accomplish these ends." A plea was mADe to the banking commissioner "to protect them and the public from the unscrupulous men to whom hAD been entrusted the product of humble, but honest toil as well as funds for the development and maintenance of private and public enterprises." A copy of the resolutions was directed to be given to each taxpayer desiring it, and copy sent to each of the parties to whom the appeal was mADe. It was set forth in Miller's petition that the residents of the county were antagonistic to him, and that, while the previous trials were occurring in the courthouse, they showed their...