Ray v. Com.

• Decision Date: 08 February 1929
• Citation: 230 Ky. 656,20 S.W.2d 484
• Parties: RAY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

20 S.W.2d 484

230 Ky. 656

RAY v. COMMONWEALTH.

Court of Appeals of Kentucky

February 8, 1929

Rehearing Denied and Dissenting Opinion Filed Oct. 25, 1929.

Appeal from Circuit Court, Nelson County.

Merimee Ray was convicted of robbery, and he appeals. Affirmed.

Dietzman J., McCandless, C.J., and Logan, J., dissenting in part, on petition for rehearing.

Osso W Stanley, of Bardstown, and David Sessmer, of Louisville, for appellant.

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

REES J.

Appellant, Merimee Ray, was jointly indicted with George Gagnon in the Nelson circuit court for robbery. Gagnon was arrested, but forfeited his bond, and had not been again apprehended at the time appellant was tried. Upon his separate trial, appellant was convicted, and his punishment fixed at confinement in the penitentiary for a period of six years.

The evidence for the commonwealth tended to show that on a Sunday night in March, 1927, the appellant, accompanied by his father-in-law and a brother-in-law, went to the home of Other Raser for the purpose of purchasing whisky. He wanted to purchase 100 gallons. Raser informed him that he had no liquor, but that he knew a young man in the neighborhood who could probably supply the quantity desired. Ray told Raser to ascertain if this party would accept $5.50 a gallon, and if he would to meet him at the mouth of Pottinger's lane on the Bardstown and Boston road on the following Tuesday night at 10 o'clock. On Tuesday morning Raser saw Witt Vittitoe and informed him of Ray's proposal. Vittitoe did not have 100 gallons of liquor, but he did have 65 gallons he was willing to deliver for the price offered. On Tuesday night, Witt Vittitoe, his brother Tom, and Other Raser loaded 65 gallons of liquor on a wagon drawn by four mules, and started out Pottinger's lane toward the Bardstown and Boston turnpike. When they arrived within about 100 yards of the intersection of the lane and the turnpike, they observed two automobiles parked on the turnpike near the mouth of the lane. One of the automobiles, bearing a license tag shown to be appellant's was driven down the lane, and after passing the Vittitoes and Raser it was turned around and driven back to the turnpike. Raser identified Ray as one of the occupants of this car, which then proceeded out the turnpike toward Boston. The other car, a Cadillac, was then driven down to where the Vittitoes and Raser were, and George Gagnon and three unidentified men got out, and, representing themselves to be prohibition officers, at the point of pistols compelled Witt Vittitoe and Other Raser to stand by while the kegs containing the liquor were removed from the wagon and placed in the automobile.

In the meantime Tom Vittitoe, suspecting that all was not well, had escaped unobserved in the dark, and was hiding in a neighboring field, but where he could hear what was transpiring. After Gagnon and his three companions had departed with the liquor, Witt Vittitoe went to a neighbor's house and telephoned to Roscoe Waters, a constable, and informed him of what had occurred. On the following morning Waters obtained impressions of the tracks made in the mud in the lane by the tires of the two automobiles. These impressions indicated that one of the cars was equipped with three kinds of tires. He located appellant's automobile at the latter's home in Louisville, and it was equipped with tires similar to those on the car that had been driven into Pottinger's lane on the previous night. He also located a Cadillac car at the home of appellant, equipped with tires similar to those that had made the other impressions which he had taken. It developed that the Cadillac car belonged to George Gagnon, who was a roomer in appellant's home.

Appellant's defense was an alibi, and he introduced a number of witnesses, who testified that they were engaged in a card game at appellant's home during the evening the robbery is alleged to have occurred, and that appellant was in his home at all times during that evening from 7 o'clock until midnight. Appellant seeks a reversal of the judgment upon the following grounds: (1) The indictment is demurrable; (2) he was entitled to a directed verdict of not guilty; (3) the court erred in giving a conspiracy instruction, when there was no such charge in the indictment; and (4) the trial court erred in changing the substance of the verdict, which found appellant guilty of an offense not charged in the indictment.

Under ground 1 it is urged that the indictment does not conform to the requirements of sections 122, 124, and 126 of the Criminal Code, and is demurrable, because ambiguous, duplicitous, and lacking in certainty. The indictment reads as follows:

"The grand jurors of the county of Nelson, in the name and by the authority of the commonwealth of Kentucky, accuse Merimee Ray and George Gagnon of the crime of robbery committed in manner and form as follows, to wit: The said Merimee Ray and George Gagnon in the said county of Nelson on the ------- day of March, 1927, and before the finding of this indictment did unlawfully, feloniously, by force and violence and by putting Witt Vittitoe in fear of bodily harm, did take, steal and carry away from the person and in the actual presence of said Vittitoe, against the will and consent of him the said Vittitoe, 65 gallons of spiritous liquor, to wit, whisky, 6 10-gallon kegs and 1 5-gallon keg, and $11 in good and lawful money of the United States, the subject of larceny, all of said personal property being of value, and was so taken and carried away as aforesaid against the will and consent of said Vittitoe, the owner thereof, with the felonious and fraudulent intent then and there to convert the same to their own use permanently and to permanently deprive the owner of his property therein; that the said George Gagnon and three men whose names are unknown to this grand jury did then and there, with force and arms, unlawfully, feloniously and by force and arms, and by putting in fear of bodily harm, did take, steal and carry away from Witt Vittitoe, from his person and in his actual presence and against his will and consent, the personal property as aforesaid, and that the defendant Merimee Ray was then and there present and near enough to and did unlawfully, feloniously and fraudulently aid, abet and assist his codefendant and said unknown and unnamed persons to commit the robbery aforesaid, against the peace and dignity of the commonwealth of Kentucky."

While the indictment is inaptly drawn and awkwardly worded, we are of opinion that it is not open to the objections made to it by the appellant. Some of the words employed therein are mere surplusage, and might well have been omitted, and there might have been a more orderly arrangement of its allegations; but, when considered as a whole, it states the acts constituting the offense charged 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 right of the case. Jackson v. Commonwealth, 187 Ky. 682, 220 S.W. 743; Johnson v. Commonwealth, 200 Ky. 342, 254 S.W. 1054. The strict common-law rules of technical construction no longer prevail in this state, but have been superseded by a practice more in conformity with a just and reasonable administration of the criminal law. Overstreet v. Commonwealth, 147 Ky. 471, 144 S.W. 751; Rutland v. Commonwealth, 160 Ky. 77, 169 S.W. 584; Merdith v. Commonwealth, 199 Ky. 544, 252 S.W. 894; Easterling v. Commonwealth, 216 Ky. 541, 287 S.W. 972.

The trial court was of the opinion that the indictment charges appellant and Gagnon as principals, and that the latter part thereof was insufficient to constitute a separate count against appellant as aider and abettor, and was surplusage. The effort to charge appellant as an aider and abettor, after charging him and Gagnon as principals, and without setting out the charge of aiding and abetting in a separate count, does not render the indictment as a whole defective.

In Grapes v. Commonwealth, 202 Ky. 760, 261 S.W. 271, Grapes was indicted with two others upon the charge of robbery. It was insisted that a demurrer to the indictment should have been sustained. The indictment is not set out in the opinion, but we have examined the record in that case, and find that the indictment is, in all material respects, similar to the indictment in this case. In the opinion in the Grapes Case it is said: "The indictment is criticized as being vague, uncertain, and unintelligible, but it definitely and certainly charges the appellant and his two codefendants with every essential element of the crime of robbery, and is indefinite only in that, after charging the defendants jointly with the commission of the crime, it alleges that one of the three actually took the money from Shawley, and that the other two were present aiding, assisting and abetting him in so doing, and that the grand jury did not know which was the principal and which the aiders and abettors. Criticism of the indictment is doubtless based upon this latter fact. This fact, however, did not render the indictment demurrable. It is the law in this commonwealth that the principal actor, aiders and abettors, and accessories before the fact, are all parties in the first degree and are equally guilty and may be so accused and convicted."

In Watkins v. Commonwealth, 227 Ky. 100, 12 S.W.2d 329, an indictment for murder, charging two defendants as principals and as aiders and abettors in a single count, was held sufficient. We conclude, therefore, that the trial court did not err in overruling the demurrer to the indictment.

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