Robertson v. Commonwealth

• Decision Date: 22 June 1937
• Citation: Robertson v. Commonwealth, 269 Ky. 317, 107 S.W.2d 292 (Ky. Ct. App. 1937)
• Parties: ROBERTSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

107 S.W.2d 292

269 Ky. 317

ROBERTSON v. COMMONWEALTH.

Court of Appeals of Kentucky

June 22, 1937

Appeal from Circuit Court, Rockcastle County.

Willie Robertson was convicted of assault with intent to rob, and he appeals.

Affirmed.

Williams & Denney and Robert B. Bird, all of Mt. Vernon, for appellant.

Hubert Meredith, Atty. Gen., and J. M. Campbell, Asst. Atty. Gen for appellee.

REES Justice.

Willie Robertson and Charlie Parker were jointly indicted for unlawfully and maliciously assaulting Otis Bond with an intent to rob him, a crime defined by section 1160 of the Kentucky Statutes. On his separate trial Willie Robertson was convicted and his punishment fixed at confinement in the penitentiary for twenty-one years. He urges as grounds for reversal (1) that his demurrer to the indictment should have been sustained; (2) irregularities in impaneling the jury (3) the verdict is flagrantly against the evidence; (4) errors in the admission and rejection of evidence; and (5) the court erred in refusing to require the commonwealth's attorney to testify when called as a witness by the defendant.

In the accusatory part of the indictment the defendants were accused "of the crime of unlawfully and maliciously assaulting another with an offensive weapon or instrument with an intent to rob or commit a robbery upon such person." In the descriptive part the words "unlawfully, maliciously and feloniously" are used. It is insisted that the word "feloniously" should have been used in the accusatory part of the indictment, and Hocker v Commonwealth (Ky.) 111 S.W. 676, 33 Ky.Law Rep. 944, Kaelin v. Commonwealth, 84 Ky. 354, 1 S.W. 594, 8 Ky.Law Rep. 293, and Biggs v. Commonwealth, 245 Ky. 250, 53 S.W.2d 535, are cited, but in two of those cases the indictment was for murder and the word "feloniously" nowhere appeared. The accusatory part of the indictment merely charged the defendant with the crime of murder, but in setting forth the constituent elements of the crime in the descriptive part the word "feloniously" was omitted and it was held that this was error.

In the Biggs Case the indictment was for grand larceny, and it was held that the word "feloniously" should have been used in the descriptive part, grand larceny being a common-law offense. As pointed out in those and many other cases, where a statute fixes a penalty for a common-law offense, the indictment must set out the constituent elements of the offense, but where the offense is a statutory one and is described by the statute an indictment which follows substantially the language of the statute is sufficient. Gravitt v. Commonwealth, 184 Ky. 429, 212 S.W. 430; Fuson v. Commonwealth, 210 Ky. 573, 276 S.W. 512; McGeorge v. Commonwealth, 237 Ky. 358, 35 S.W.2d 530; Commonwealth v. Fain, 248 Ky. 383, 58 S.W.2d 642. The accusatory part of an indictment for a statutory offense is sufficient if it designates the offense by a brief general description in the language of the statute. Allen v. Commonwealth, 178 Ky. 250, 198 S.W. 896; Commonwealth v. Schatzman, 118 Ky. 624, 82 S.W. 238, 26 Ky.Law Rep. 508.

The crime for which appellant was indicted is a statutory one and the word "feloniously" does not appear in the statute. Section 1160 of the Statutes reads: "If any person, with an offensive weapon or instrument, shall unlawfully and maliciously assault, or in or by any forcible and violent manner, demand any money, goods or chattels, bond, bill, deed or will, or other evidences of right, or other thing of value of or from any other person, with an intent to rob or commit a robbery upon such person, he shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for twenty-one years or for life, or by death, in the discretion of the jury."

It will be noted that the accusatory part of the indictment in designating the offense follows the language of the statute literally. In Howerton v. Commonwealth, 129 Ky. 482, 112 S.W. 606, 607, 33 Ky.Law Rep. 1008, the defendant was convicted of a statutory felony. The indictment failed to charge either in the accusatory or descriptive part that the crime was committed feloniously or with a felonious intent, and this was urged as a ground for reversal of the judgment. In disposing of the question, the court said: "The objection is without merit. The crime charged is purely statutory, and being defined by the statute, and the language of the statute followed by the indictment, an allegation of felonious intent was not essential. In respect to crimes that are felonious under the common law, the indictment, to be sufficient, must charge their commission feloniously or with a felonious intent, but the rule is different where the crime is purely statutory, and is defined by the statute itself. In such case the indictment is sufficient if it follows the language of the statute without the use of the term 'feloniously' or the words 'felonious intent."'

To the same effect are Wyrick v. Commonwealth, 246 Ky. 127, 54 S.W.2d 629; Bates v. Commonwealth, 226 Ky. 318, 10 S.W.2d 1099; Gregory v. Commonwealth, 187 Ky. 188, 218 S.W. 999; Commonwealth v. Tanner, 5 Bush, 316.

In Moss v. Commonwealth, 138 Ky. 404, 128 S.W. 296, 297, the defendant was convicted of a crime defined by the statute then in force as "unlawfully carnally knowing a female under the age of sixteen years." It was held that an indictment under the statute must charge that the intercourse was unlawful. The indictment did this in the descriptive part and it was held that this was sufficient although the word "unlawful" was not in the accusatory part.

Complaint is made of the manner in which the jury was selected. Section 2264 of the Kentucky Statutes provides that on the day the jury shall be summoned to attend court, the panel shall be called, and the names of such as attend, and are not excused by the court, shall be entered of record. Those whose names are so recorded constitute the regular panel. Section 2265 of the Statutes reads: "The clerk shall write the names of jurors entered of record on separate slips of paper, as near the same size and appearance as may be, and when a jury is wanted for the trial of a case the same shall be drawn from a box after the papers shall have been deposited therein and well mixed. The clerk shall provide and keep for that purpose a suitable box with a sliding lid."

In criminal cases the clerk is required to draw from the box twelve names who shall compose the jury to try the cause, unless some one or all of them shall be challenged, in which case the clerk shall draw from the box as many more as may be required and as often as required, until a jury be obtained or the whole panel be exhausted. Section 2266, Kentucky Statutes. If, in any criminal cause, the panel shall be exhausted by challenge, the judge may supply such jurors by drawing from the drum or wheel, or may direct the sheriff to summon for the trial of that cause any number of bystanders or persons to fill such vacancies. Section 2247, Ky.Statutes. In making up the jury in the instant case, the panel was exhausted after ten jurors had been accepted by both sides. The trial judge then drew twelve names from the jury wheel and directed the sheriff to summon the jurors whose names had been drawn. Two of these jurors appeared after they had been summoned and they were called to the jury box and counsel were directed by the court to proceed to examine them for qualification for jury service. The appellant objected to this procedure and insisted that the court should wait until all of the jurors whose names had been drawn from the wheel had been summoned and had arrived in court, and that their names be placed in the box by the clerk and then drawn therefrom in the manner prescribed by section 2265 of the Statutes. The appellant's motion was overruled and it is insisted that this was error.

Appellant relies upon Williams v. Commonwealth, 254 Ky. 277, 71 S.W.2d 626, and other cases of similar import, but in those cases the court was dealing with the selection of a jury from the regular panel. Section 2265 of the Statutes, which regulates the mode of selecting a jury, clearly applies only to the regular panel. When that panel is exhausted, the trial judge may, in a criminal case, fill the vacancies either by drawing from the drum or by having bystanders summoned by the sheriff. In this case he could have drawn two names from the drum, or he could have directed the sheriff to summon two bystanders and there could have been no objection. In order to prevent unnecessary delay in completing the jury, he drew twelve names from the wheel. There is no provision in the Statutes requiring these names to be placed in a box and drawn by the clerk. In many cases a large number of names are drawn from the wheel, and, if the court should be required to wait until all had been summoned and had appeared before proceeding with the trial, unnecessary delay would result. The Statute relied upon by appellant does not contemplate that such procedure shall be followed after the regular panel has been exhausted.

Appellant's contention that the...