Pence v. Com.

• Decision Date: 31 May 1894
• Citation: 95 Ky. 618,26 S.W. 810
• Parties: PENCE v. COMMONWEALTH. HAYS v. SAME.
• Court: Kentucky Court of Appeals

26 S.W. 810

95 Ky. 618

PENCE v. COMMONWEALTH.

HAYS v. SAME.

Court of Appeals of Kentucky.

May 31, 1894

Appeals from circuit court, Breathitt county.

"To be officially reported."

Henly Hays and William Pence, convicted of burning a storehouse appeal. Affirmed.

Samuel H. Patrick, for appellants.

Wm. J Hendrick, for the Commowealth.

PRYOR J.

The two appellants, Henly Hays and William Pence, were indicted and convicted for burning the storehouse of Obediah Roberts, and have appealed to this court. Much of the testimony upon which Hays was convicted consisted of his own confessions, and as to Pence it is plain that he was wearing upon his person shoes that had been in this store, and, in the endeavor to account for the manner in which he obtained the possession failed to make it satisfactory to the jury, and in fact never obtained them in the manner detailed by him. He was with Hays on the evening preceding the night of the burning, and the jury, knowing the parties, and having before them the witnesses, have said that he is guilty, and of this have but little doubt.

The only question necessary to be considered arises from the motion made by the attorney for the commonwealth to have the clerk mark the indictment "Filed," and insert also, the day on which it was returned into court. It was discovered, after the jury had been sworn, and a witness was being examined, that the clerk had failed to make this indorsement when the indictment was presented by the foreman of the grand jury. The attorney for the state then moved to have the indorsement made, it appearing the indictment had been returned into court with the other indictments at the term at which it had been found, but the clerk neglected to mark it "Filed." It is said that this was done without swearing the clerk or the commonwealth's attorney, and therefore, if proper then to make the indorsement, the testimony was not sufficient to authorize it. There was no objection made to the statements of the clerk, except as to his right to mark the indictment "Filed" at a term other than the term at which the indictment was returned. We perceive no objection to the action of the court below. It is not pretended that the grand jury had failed to return any indictment against these parties, and the indorsement filing it is to identify the term at which it was returned; and the omission of the clerk to do so is not such an irregularity as...