Privett v. Commonwealth

• Decision Date: 18 March 1930
• Citation: 233 Ky. 471,26 S.W.2d 3
• Parties: PRIVETT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

26 S.W.2d 3

233 Ky. 471

PRIVETT v. COMMONWEALTH.

Court of Appeals of Kentucky

March 18, 1930

Appeal from Circuit Court, McCreary County.

T Privett was convicted of an offense, denounced in Ky. St 1922, § 1168, as amended by Laws 1928, c. 40, of willfully and maliciously setting fire to and burning a storehouse, and he appeals.

Reversed with directions.

H. M Cline, of Whitley City, for appellant.

J. W Cammack, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for the Commonwealth.

THOMAS C.J.

The appellant, T. Privett, was indicted by the grand jury of McCreary county, and at his trial thereunder he was convicted of an offense denounced in section 1168 of our present Statutes as amended by chapter 40, page 172, of the Session Acts of 1928, i. e., of "unlawfully, willfully and maliciously setting fire to and burning the storehouse of the Stearns Coal and Lumber Company." The verdict punished appellant by confinement in the penitentiary for a term of three years, and after his motion for a new trial was overruled he prosecutes this appeal, and through his counsel urges three grounds for reversal, which are: (1) The insufficiency of the indictment, and error of the court in overruling the demurrer filed thereto; (2) the insufficiency of the evidence apart from the testimony of an accomplice to authorize a submission of defendant's guilt to the jury and by reason thereof his motion for a peremptory instruction of acquittal should have been given, and (3) error in the admission of testimony offered by the commonwealth--each of which will be considered and determined in the order mentioned.

1. The indictment, omitting caption and signature of the attorney, reads:

"The Grand Jury of McCreary County, in the name and by the authority of the Commonwealth of Kentucky, accuse T. Privett, Edgar Garland, and John Ridner of the offense of arson:

Committed in manner and form as follows: viz. the said T. Privett, Edgar Garland, John Ridner did on the 8th day of November, 1928, in the county and state aforesaid and before the finding of the indictment herein, unlawfully, willfully, feloniously and maliciously set fire to and burn the storehouse of the Sterns Coal & Lumber Company against the peace and dignity of the Commonwealth of Kentucky."

It will be perceived that the accusatory paragraph of the indictment names "the offense of Arson"; while the descriptive part of the indictment charges defendant, with others, of the commission of one of the offenses denounced in section 1168, supra, i. e., that of willfully, feloniously, and maliciously burning the storehouse of another, and which is in direct conflict with the principles announced in the recent case of Deaton v. Commonwealth, 220 Ky. 343, 295 S.W. 167, and others therein referred to.

In other words, the indictment now under consideration accuses defendant with the common-law offense of arson, which is the willful, felonious, and unlawful burning of a dwelling house, while the descriptive part of the indictment charges him and his codefendants with having committed the statutory offense of burning, in the same manner, a storehouse. The Deaton Case, which dealt with the same defect now under consideration and which was therein held to be fatal to the indictment, has been followed and approved in the later cases of Middleton v. Commonwealth, 226 Ky. 220, 10 S.W.2d 812, and Gregory v. Commonwealth, 226 Ky. 617, 11 S.W.2d 432. The opinions in the cited cases, as well as those in cases referred to therein, have firmly established the rule that the provisions of sections 122 and 124 of the Criminal Code of Practice should be read together in testing the sufficiency of an indictment, and that when done they require that the offense named in the accusatory part of an indictment must correspond with the one described in the following or descriptive part of the indictment; and our opinion in the case of De Boe v. Commonwealth, 146 Ky. 696, 143 S.W. 39, 40, does not indorse a contrary practice. In that case the same offense as well as the same question was involved, and we held the indictment to be sufficient therein because it substantially complied with the rules as announced in the Deaton and other opinions.

The accusatory part of the indictment in the DeBoe Case charged defendant with "feloniously, willfully, and maliciously committing arson by setting fire to and burning the storehouse of Herman Friedman," and its descriptive part correctly described the statutory offense of so burning a storehouse. No doubt a different conclusion would have been reached in that case had it not been for the explanatory language in the accusatory part of the indictment immediately following the word "arson." That language was "by setting fire to and burning the storehouse of Herman Friedman," thereby clearly pointing out in a manner to be easily understood by defendant and all others the precise offense intended to be charged, and showing that the word "arson" was not employed in its technical sense, or as charging the separate...