Myers v. Commonwealth

• Citation: 210 Ky. 373
• Parties: Myers v. Commonwealth.
• Decision Date: 02 October 1925
• Court: United States State Supreme Court (Kentucky)

210 Ky. 373

Myers v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 2, 1925.

1. Conspiracy — Forming of Conspiracy is Misdemeanor, Whether it be Carried Out or Not. — Forming of conspiracy to do an unlawful act or a lawful act in an unlawful manner is a misdemeanor, whether conspiracy is carried out or not.

2. Conspiracy — Misdemeanor, Consisting of Forming of Conspiracy, is Not Merged in Misdemeanor, Commission of which is Object of Conspiracy. — Where conspiracy is formed for purpose of committing a misdemeanor, misdemeanor committed by forming conspiracy is not merged in that committed, when its purpose is accomplished.

3. Criminal Law — Conspiracy to Traffic in Intoxicating Liquor is Different Offense from that of Transportation as Affects Plea of Former Acquittal. — Conspiracy to sell, transport, and possess intoxicating liquor for other than medicinal, mechanical, or sacramental purposes is an offense, separate and distinct from that of transporting liquor as affects plea of former acquittal.

4. Criminal Law — Conviction or Acquittal for One Offense Held to Bar Prosecution for Another on Same Act. — Commonwealth cannot separate single act or transaction into two or more separate offenses, and where a single criminal act is sufficient in itself to provide more than one offense, Commonwealth must elect between them, and conviction or acquittal on one charge is a bar to prosecution on another charge based on same act.

5. Conspiracy — Evidence Held Insufficient to Sustain Conviction for Conspiracy to Unlawfully Traffic in Intoxicating Liquor. — Evidence of defendant's transportation and sale of liquor to another held insufficient to sustain conviction for conspiracy to unlawfully traffic in intoxicating liquor.

6. Conspiracy — May be Established from Circumstances, But Not by Mere Suspicion. — Conspiracy may be shown by circumstances warranting inference of its existence but not by mere suspicion, and mere relationship between parties, according to their habits and modes of life, does not constitute evidence of conspiracy.

Appeal from Christian Circuit Court.

McKENZIE & SMITH for appellant.

FRANK E. DAUGHERTY, Attorney General, and CHARLES F. CREAL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellant seeks to reverse a judgment imposing upon him a fine of $500.00 and imprisonment of thirty days for the offense of conspiring with Owen Gray to sell, transport and possess intoxicating liquor for other than medicinal, mechanical, scientific or sacramental purposes. There was a business conducted by Owen Gray at 611 Virginia street, in Hopkinsville, Kentucky, and there was working for Gray one E.L. Stoneham. Stoneham was arrested for selling whiskey, and it seems that he was offered immunity from federal prosecution if he would furnish evidence against Gray and Myers. Thereupon Stoneham stated that he was selling whiskey at this place, that Gray employed him to sell whiskey at this place, and that Myers delivered the whiskey to the place. Accordingly, Myers was arrested for transporting intoxicating liquor. He was tried on that charge in the Hopkinsville police court on September 4, 1924, and acquitted. Thereafter, on October 3, the grand jury of Christian county returned an indictment against Owen Gray and Ernest Myers, charging them with the conspiracy above stated. To this indictment both of the defendants filed a general demurrer which was properly overruled. Conspiracy to do an unlawful act or to do a lawful act by an unlawful means was a misdemeanor at common law, and if Myers and Gray did form a conspiracy to engage in the illegal liquor traffic, they committed an indictable offense, whether they ever actually engaged in the business or not, and if, after forming this conspiracy, they actually engaged in the illicit traffic and thereby consummated the object of their conspiracy, the misdemeanor committed when the conspiracy was formed was not merged into the misdemeanor committed when the traffic was engaged in. We are aware that this court has said in the case of Commonwealth v. Barnett, 196 Ky. 731, 245 S.W. 874: "The offense consisting of the conspiracy alone is merged in the commission of the object of the conspiracy if the latter be of a higher grade than that of misdemeanor." This is in harmony with the holdings of other states, and while our attention is not called to any ruling of this court upon the question of merger, where the consummated act amounts to a misdemeanor only, yet the above ruling would indicate that in such circumstances the offense committed when the misdemeanor was formed was not merged into the misdemeanor committed when the object of the conspiracy was consummated, and such is the uniform holding of other jurisdictions. See Berkowitz v. U.S., 93 Fed. 452, 35 C.C.A. 379; Orr v. People, 63 Ill. App. 305; People v. Richards, 1 Mich. 216, 51 Am. Dec. 75; State v. Murphy, 6 Ala, 765, 41 Am. Dec. 79; People v. Mather, 4 Wendell (N.Y.) 229, 21 Am. Dec. 229.

As a bar to the indictment Gray pleaded his conviction in the Hopkinsville police court and Myers pleaded his acquittal in that court. Myers was tried separately. By Stoneham the Commonwealth proved that Myers was about this place several times during the day and of a night, and that Myers on one occasion brought to this...