Overstreet v. Commonwealth

• Decision Date: 12 March 1912
• Citation: 144 S.W. 751,147 Ky. 471
• Parties: OVERSTREET v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

144 S.W. 751

147 Ky. 471

OVERSTREET v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 12, 1912

Appeal from Circuit Court, McCracken County.

George Overstreet was convicted of house burning, and he appeals. Affirmed.

Sam'l H. Crossland, for appellant.

James Garnett, Atty. Gen., and James D. Black, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

Under the following indictment, the appellant, Overstreet, was convicted of the statutory crime of house burning, and sentenced to imprisonment for from one to six years. "The grand jurors of the county of McCracken, in the name and by the authority of the commonwealth of Kentucky, accuse George Overstreet, Butler Fondaue, R. H. Deboe, Oce Potter, and Hal Wallace of the offense of arson, committed in manner and form as follows: The said George Overstreet, Butler Fondaue, R. H Deboe, Oce Potter, and Hal Wallace, in the said county of McCracken, on the 21st day of April, 1911, and before the finding of this indictment, did feloniously, willfully, and maliciously set fire to and burn the storehouse of Herman Friedman, against the peace and dignity of the commonwealth of Kentucky."

The principal question presented for our consideration is: Was this a sufficient indictment for house burning, and can a conviction for house burning be sustained under it?

It is insisted by counsel for appellant that the demurrer to the indictment should have been sustained, or that his motion for a verdict of not guilty at the conclusion of the evidence should have been sustained. Strictly and technically speaking, the indictment is not good, either as an indictment for arson or for house burning. But, conceding this much, it does not follow that the demurrer should have been sustained or that the motion for a directed verdict was improperly overruled. We have in this state no statute covering particularly or specifically the common-law crime of arson. Section 1167 of the Kentucky Statutes provides that, "if any person shall be guilty of arson, he shall be confined in the penitentiary not less than five nor more than twelve years." And it is obvious that this section was intended to furnish a penalty for the common-law crime of arson; but for a definition of "arson" we must go to the common-law books. Arson, at common law, the punishment for which was death, was the burning of the dwelling house of another, or some outhouse used in connection therewith. Russell on Crimes, vol. 2, p. 547; Wharton's Criminal Law, vol. 1, § 825. Measured by this accepted definition, it is apparent that the indictment did not describe the crime of arson. It is also very clear that the indictment against Overstreet, although the offense charged is designated as arson, was found under section 1169 of the Kentucky Statutes, providing that, "if any person shall willfully and unlawfully burn a *** storehouse, *** he shall be confined in the penitentiary not less than one nor more than six years. ***"

We have, therefore, an indictment naming the offense as arson in the accusative part, but showing in the body, or descriptive part, that the offense committed was not arson, but statutory house burning. And so, if the indictment is to be judged by strict standard of criminal pleading, the demurrer to it should have been sustained, because, under exact rules of pleading, the identical offense charged should be described, both in the accusative and descriptive parts of the indictment; and an indictment that designated in the accusative part one offense and described another in the body would be demurrable. But the strict and technical rules of criminal pleading that prevailed at common law and for many years in this state have been superseded by the more just and sensible practice that declines to be controlled by unimportant and unsubstantial forms that serve to delay and obstruct the administration of the criminal law, without protecting the accused in any right guaranteed to him by either the common law or the Constitution or statutes of the state. It is, of course, fundamental that every person accused of crime shall be informed of the nature of the accusation against him, so that he may be prepared to make his defense; and, with this object in view, it is provided in section 122 of the Criminal Code of Practice that "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 a person of common understanding to know what is intended; and with such degree of certainty as to enable the court to pronounce judgment, on conviction, according to the rights of the case." And, in section 124, that "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." In other sections, there are provisions further regulating the practice in respect to indictment; but the essential things are that the indictment shall contain (a) the name of the party charged, (b) the offense charged, (c) the county in which it was committed, (d) and a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, and such degree of certainty as to enable the court to pronounce judgment on conviction according to the rights of the case. It is apparent that when an indictment furnishes this information the accused cannot be misled or deceived by it, or fail to know what offense he is charged with; nor will the court be in doubt when it comes to pronounce judgment.

An indictment may contain more than is necessary, or it may be phrased in inapt words, or the sentences may be ungrammatically or awkwardly expressed, or the spelling not conform to approved standards; but if, when considered as a whole, the charge is stated with sufficient clearness and certainty to enable a person of common understanding to know what he is charged with, and to enable the court to pronounce judgment, no error in form of expression will make the indictment bad. Nor will any difference between the accusative part of the indictment and the body, or descriptive part of it, that is not so substantial as to be misleading be fatal to the sufficiency of the pleading. In other words, in considering the sufficiency of an indictment, it will be read and considered as a whole; and if, when so read and considered, it substantially conforms to the requirements of the Code in respect to the matters therein pointed out as material and necessary, it will be a good indictment. We do not mean to say that an indictment that departs from the substantial rules of Code pleading, or that fails in some material respect to conform to common-law or statutory requirements, should be treated as a good pleading. What we do mean to say is that it is only the substantial material things that are necessary, and that the failure to observe formal or immaterial things will not be regarded as fatal to the indictment.

That this just, as well liberal, rule of practice should obtain in this court is made plain by section 340 of the Criminal Code reading: "A judgment of conviction shall be reversed for any error of law [appearing on the record when, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby]." The words in brackets were inserted in this section by an act of March 4, 1880. Previous to this amendment, the section read: "A judgment of conviction shall be reversed for any error of law to the defendant's prejudice appearing on...