Phelps v. Commonwealth

• Decision Date: 29 May 1925
• Citation: Phelps v. Commonwealth, 209 Ky. 318, 272 S.W. 743 (Ky. Ct. App. 1925)
• Parties: PHELPS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

272 S.W. 743

209 Ky. 318

PHELPS v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 29, 1925

Appeal from Circuit Court, Marshall County.

Burnett Phelps was convicted of conspiracy to break and enter a storehouse with intent to steal therefrom, and he appeals. Affirmed.

J. Bell Nichols, of Paducah, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, and Gardner K Byers, Asst. Attys. Gen., for the Commonwealth.

DIETZMAN J.

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 this 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, Ky. 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 do 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 the 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 guilty. In Slaven v. Commonwealth, 197 Ky. 790, 248 S.W. 214, this court upheld a prosecution under section 1241a--1, supra, of the statutes where Slaven and his brother, highly incensed because one Spradlin had accused Slaven of changing the mark on a hog, had pursuant to an understanding between them committed an assault upon Spradlin. Although these facts come clearly within the express wording of the statute, they are pretty far from constituting a riotous assemblage of persons. In Piercy v. Commonwealth, 195 Ky. 725, 244 S.W. 52, the appellant together with two others was indicted under the same section we are discussing for conspiring to commit an assault upon one Wells, and we sustained a conviction had under such indictment. The same is true of Keith v. Commonwealth, 195 Ky. 635, 243 S.W. 293.

As stated, these cases and many others which might be cited demonstrate that this court has always given effect to just what the Legislature said in these sections of the statutes. Although all these cases present a situation of a conspiracy to do violence to person or property, it is not apparent why this court should not also give effect to what the Legislature plainly said when the conspiracy is to do "any felonious act." Literally such conspiracy comes within the wording of the statute and that such a conspiracy actually does is the necessary holding of this court in the case of Anderson v. Commonwealth, 203 Ky. 681, 262 S.W. 1105. We have again examined the record in that case and find that Anderson and his confederates were charged in the indictment with the offense of conspiring confederating, and banding themselves together for the purpose of committing a felony, to wit, the obtention of money by false pretenses. Although nothing is said in the opinion about section 1241a--1, supra, it is quite apparent that the prosecution was had and the conviction upheld by this court under its provisions. This case, therefore, although it does not discuss the questions here raised, is...