Phelps v. Commonwealth

Decision Date29 May 1925
PartiesPhelps v. Commonwealth.
CourtUnited States State Supreme Court — District of Kentucky

1. Statutes — Doctrine of "Ejusdem Generis" is Only a Rule of Construction to Aid in Ascertaining Legislative Intent. — Doctrine of "ejusdem generis" in construction of a statute that when any general words follow an enumeration of particular things or objects set out therein, general words will be construed as applicable only to persons or things of same general nature or class as those enumerated is only a rule of construction to aid in ascertaining legislative intent, and does not control where it clearly appears from statute as a whole that no such limitation was intended, or where specific words of statute describe subjects which differ greatly from one another, or where specific words embrace all objects of their class so that general words must bear a different meaning from specific words or be meaningless.

2. StatutesLegislative Intent to Give Effect to General Words Different from Specific Words will be Given Effect by Courts. — If

context of a statute discloses a legislative intention to give an effect to general words different from specific words, courts will carry into effect such intention.

3. Conspiracy — Statute Held to Include Conspiracy to Break and Enter a Storehouse with Intention of Stealing Therefrom. Ky. Stats., 1241a-1 denouncing conspiracies to do certain specific acts "or to do any felonious act" held to include a conspiracy to break and enter a storehouse with intention of stealing therefrom, doctrine of ejusdem generis being inapplicable.

4. Criminal Law — Corroboration of Defendant's Accomplice Held Sufficient to Sustain Conviction for Conspiracy to Break and Enter Storehouse. — Corroboration of defendant's accomplice held sufficient to sustain conviction for conspiracy to break and enter storehouse with intention of stealing therefrom.

5. Criminal Law — Discretionary with Court to Deny Continuance for Absent Witness and to Permit Defendant to Read to Jury What he would Say if Present. — It was discretionary with court to deny a continuance for an absent witness and to permit defendant to read to jury an affidavit of what such witness would say, if present, as witness' deposition.

6. Criminal Law — Court's Discretion Not Abused in Denying Continuance for Absent Witness. Court did not abuse its discretion in denying continuance for absent witness in prosecution for conspiracy, where it permitted defendant to read to jury an affidavit of what such witness would say, if present, as witness' deposition, and testimony of such witness did not go to real issues, but only to contradict testimony of witness as to where defendant was on day after robbery.

7. Criminal Law — Any Error in Instruction Defining Conspiracy Held Cured by Another Instruction. — In prosecution for conspiracy to break and enter a storehouse and to steal therefrom, any error defining a criminal conspiracy as a corrupt agreement between two or more persons to do an unlawful act in not stating what would be such an unlawful act held cured, where court in another instruction pointed out what was the unlawful act in the case.

8. Conspiracy — Instruction Held Not Erroneous Because Not Requiring Conspiracy to be Formed to Break into Storehouse of Victim. — In prosecution for conspiracy to break and enter a storehouse with intention of stealing therefrom, instruction held not erroneous, because not requiring conspiracy to be formed to break into storehouse of particular person, since, if defendant with his confederates conspired to break into any storehouse, they would be guilty.

Appeal from Marshall Circuit Court.

J. BELL NICHOLS for appellant.

FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, and GARDNER K. BYERS, Assistant Attorneys General, for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

The appellant was tried and convicted under an indictment charging him with the offense of conspiring, confederating and banding together with certain other named accomplices for the purpose of breaking and entering a storehouse with the intention of stealing therefrom. On this appeal he insists that his demurrer to the indictment should have been sustained; that the corroboration of the accomplice who testified against him was not sufficient to support the conviction; that he was entitled to a continuance asked for; and that the instructions given by the trial court were erroneous.

Considering these contentions seriatim, we find that the indictment and prosecution in this case were had under section 1241a-1 of the Kentucky Statutes, which reads:

"If any two or more persons shall confederate or band themselves together for the purpose of intimidating, alarming, disturbing or injuring any person or persons, or to rescue any person or persons charged with a public offense from any officer or other person having the lawful custody of any such person or persons, with the view of inflicting any kind of punishment on them, or with the view of preventing their lawful prosecution for any such offense 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."

It is insisted that this section is not applicable to the state of facts present in his case and alleged in the descriptive part of the indictment. The facts shown by the testimony and amply set out in the indictment are that appellant, together with Ellis Pullum, Arthur Dillingham and Aaron Moore, entered into an agreement at Paducah, Kentucky, to break and enter the storehouse of George Goheen at Birmingham, in Marshall county, and to steal therefrom a quantity of merchandise. Pursuant to this conspiracy, the accomplices of appellant shortly thereafter broke and entered the storehouse of Goheen at Birmingham and stole from it a large quantity of wearing apparel and other merchandise. Appellant contends that this conspiracy does not come within the prohibition of section 1241a-1, supra, because this statute is confined to the prevention of injury to person and property at the hands of riotous assemblages of persons, and to the punishment of conspiracies formed for the purpose of doing the acts specifically enumerated therein, as the expression "to any felonious act" appearing in such statute should be construed under the doctrine ejusdem generis to cover only those classes of offenses previously specifically enumerated.

It is true that in the case of Commonwealth v. Barnett, 196 Ky. 731, 245 S.W. 874, it was intimated that the above contentions might logically be urged in interpreting this section of the statutes. But it was not necessary to adopt such contentions in arriving at the result reached in that case, and the court specifically said:

"It is not altogether clear but that ejusdem generis doctrine should apply to the expression in the statute `or to do any felonious act' . . . but under our view of the proper construction of the act it is not necessary to and we do not determine that question."

In the Barnett case the court had to determine whether or not Barnett, who had testified in a prosecution under an indictment charging certain named conspirators with the offense of conspiring to prevent an election, had testified in a prosecution had under section 1241a-1, et seq., of the statutes. The offense of preventing an election is a misdemeanor, see Kentucky Statutes, section 1588, and hence the court did not have before it the question of a conspiracy to do a felonious act. It is, therefore, quite apparent that the Barnett case is not controlling of the question now before us.

Whatever may have been in the mind of the legislature when it enacted section 1241a-1, supra, and its companion sections, this court through a long line of decisions has given effect to what the legislature plainly said in those sections. Although it is claimed that the legislature meant by these sections to deal with riotous assemblages of persons, yet the sections are broader in wording than necessary to effect any such purpose, for they say "if any two or more persons" conspire to do the things denounced such persons shall be...

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  • Acree v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • 25 d5 Março d5 1932
    ...of two or more persons to do a felonious act, whether it is consummated or not. Eubank v. Com., 210 Ky. 150, 275 S.W. 630; Phelps v. Com., 209 Ky. 318, 272 S.W. 743; v. Com., 13 Ky. Law Rep. 397; Carr v. Com., 25 S.W. 886, 15 Ky. Law Rep. 826; Commonwealth v. Morton, 140 Ky. 628, 131 S.W. 5......

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