Ray v. Commonwealth
| Decision Date | 25 October 1929 |
| Parties | Ray v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
1. Indictment and Information. — Indictment for robbery, which in the same count charged defendant and another with being principals, and defendant with being an aider and abettor, though inaptly drawn and awkwardly worded, held not demurrable, as not complying with requirements of Criminal Code of Practice, secs. 122, 124, 126, nor as ambiguous, duplicitous, and lacking in certainty.
2. Indictment and Information. — The strict common-law rules of technical construction of indictments no longer prevail in this state.
3. Robbery. — In prosecution against defendants, jointly indicted for robbery, evidence held sufficient to authorize finding that a conspiracy between defendants existed, and that pursuant thereto the robbery was committed.
4. Larceny. — Notwithstanding 27 USCA, sec. 39, and Ky. Stats., Supp. 1928, sec. 2554a8, providing that no property rights shall exist in intoxicating liquor unlawfully possessed, intoxicating liquor, though unlawfully possessed, may be the subject of larceny or robbery; such statutes affecting only the civil rights of one unlawfully possessing liquor, and depriving him of any remedy for recovery of liquor, or for damages for its confiscation or taking.
5. Indictment and Information. — A defendant is entitled to be advised of the charge against him, in order that he may be prepared to meet it.
6. Robbery. — Indictment charging that defendant and another, as principals, committed robbery, held sufficient to inform defendant that he was accused of entering into a conspiracy with his codefendant to commit the crime of robbery and that pursuant to such conspiracy the robbery was committed, so as to authorize evidence of such conspiracy.
7. Criminal Law. — Where one is jointly charged as a principal with another, it is competent to show that the crime was executed by a codefendant pursuant to a conspiracy, in order to establish that defendant was a principal, and an instruction, based on such evidence, is proper.
8. Criminal Law. — Where defendant and another were jointly indicted for robbery, action of trial court in altering jury's verdict, reading that they found defendant "guilty of conspiracy and sentence him to six years in the pen," so as to read, "Guilty as charged in the indictment, and fix his punishment at confinement in the penitentiary for six years," which court then read to jury, who answered in affirmative question whether that was what they ment, held to affect merely the form of verdict and not its substance, and made it conform to jury's intention.
Appeal from Nelson Circuit Court.
OSSO W. STANLEY and DAVID SESSMER for appellant.
J.W. CAMMACK, Attorney General, and S.H. BROWN, Assistant Attorney General, for appellee.
Affirming.
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 Vittoe, 65 gallons of spirituous 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...
To continue reading
Request your trial