Sanders v. Commonwealth

Decision Date25 April 1933
Citation60 S.W.2d 586,249 Ky. 225
PartiesSANDERS v. COMMONWEALTH.
CourtKentucky Court of Appeals

Rehearing Denied June 20, 1933.

Appeal from Circuit Court, Owen County.

Bob Sanders was convicted of the offense of willful neglect in the discharge of his official duties as jailer, and he appeals.

Affirmed.

J. L Vallandingham, of Owenton, and Rogers & Rogers, of Covington for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

RATLIFF Justice.

Bob Sanders, jailer of Owen county, Ky. was indicted and convicted of the offense of willful neglect in the discharge of his official duties as jailer. He was fined $100 and his office adjudged vacant. He appeals.

The indictment charges that "the said Bob Sanders, in the state and county aforesaid, on the 19th day of September, 1931, and within twelve months before the finding of this indictment, while he, the said Bob Sanders, was acting jailer of Owen county, Kentucky, after having been duly elected and qualified as such, did unlawfully, willfully, knowingly neglect to discharge the duties of his office as jailer of Owen county, Kentucky, by being drunk and in an intoxicated condition, by absenting himself from the said jail and the court house of Owen county, Kentucky, without leaving in charge of said jail, a deputy jailer to discharge the duties of the jailer's office; that on the said 19th day of September, 1931, a court of inquiry was being held in Owenton, Kentucky, the county seat of Owen county, by Judge Howard Ellis, the duly elected and qualified and acting county judge of Owen county, Kentucky, investigating law violations in Owen county, Kentucky; that said Howard Ellis, judge of said court, desired the presence of ______ Bradley, Earl Braden and John Wells before said court of inquiry, to be sworn and to give evidence concerning certain law violations in Owen county, Kentucky; said _______ Bradley, Earl Braden, and John Wells, then being confined in said jail charged with violations of the criminal laws of Kentucky, they being in custody of said Bob Sanders and locked in said jail; that it was the duty of said Bob Sanders, jailer, to be at the jail or at the court house in Owen county, Kentucky, during said court of inquiry and at all times, or to have in his stead a deputy jailer to discharge the duties of the jailer's office and thereby bring said _______ Bradley, Earl Braden and John Wells out of said jail to testify before said court of inquiry when their presence was desired before said court, but the said Bob Sanders, jailer, on the 19th day of September, 1931, and while said court of inquiry was in session, did unlawfully, willfully, knowingly neglect to discharge the duties of said office as jailer of Owen county, Kentucky, by being drunk and in an intoxicated condition and by leaving the jail and failing and neglecting to discharge the duties of his office and without leaving in charge of the jail a deputy jailer to discharge the duties of the jailer's office."

In the second count or item, the indictment charges a similar act committed on the 7th day of October, 1931, the accusative and descriptive parts being the same in substance as the first, except that it charges that on said date the defendant absented himself from the jail and county, by going to Carrollton, Carroll county, Ky. and there remaining drunk and in an intoxicated condition, and thereby neglected his duties as jailer, in the same way and manner in substance as set out in count 1. The third count or item charges that on the 8th day of October, 1931, the defendant committed a similar act which is, in substance, a repetition of count or item 2; the only difference being in the dates. It further charges that on the 9th day of October, 1931, defendant committed similar acts as set out in the above counts, except that it charges that he absented himself by going to Monterey in Owen county; the accusative and descriptive parts being, in substance, the same as the other items. It further charges that on the 31st day of October, 1931, the defendant unlawfully, willfully, and knowingly neglected to discharge the duties of his office by permitting a person to go into the said jail without being guarded or searched, conveying into the jail and delivering to certain prisoners therein hacksaw blade, for the purpose of aiding and assisting them to escape therefrom.

A demurrer to the indictment and a motion to elect were overruled, both of which the appellant complains.

It is insisted that the indictment charged more than one offense, and for that reason the demurrer should have been sustained, or the motion to elect sustained. We are unable to find any merit in that contention. The indictment charges the offense of willful neglect in the discharge of his official duties. The fact that the indictment charges that the offense was committed in various ways, modes, and times does not mean that it charges more than one offense. A single or isolated act might not constitute the offense charged, but rather a continuation, repetition, and habitual indulgence in the conduct charged is the gravamen of the offense. The different items or counts set out in the indictment are merely conducive to show the different means, modes, and manner by which he committed the offense of willful neglect of his official duties. The fact that the indictment set out in detail the various dates and conduct showing when and how the alleged offense was committed was favorable to the defendant, in that it fully apprised him of the nature of the charges and he was thereby enabled to meet the issues. There is but one offense charged, to wit, "willful neglect in the discharge of his official duties," and the different dates and items set out in the indictment are combined to constitute that single charge. The trial court did not err in overruling the demurrer and motion to elect. Section 126, Criminal Code of Practice; Curd v. Commonwealth, 210 Ky. 588, 276 S.W. 498; Hannah v. Commonwealth, 242 Ky. 220, 46 S.W.2d 121; Greenbaum v. Commonwealth, 10 Ky. Law Rep. 723; Robbins v. Commonwealth, 232 Ky. 115, 22 S.W.2d 440; Castle v. Commonwealth, 232 Ky. 561, 24 S.W.2d 298; Fuson v. Commonwealth, 241 Ky. 481, 44 S.W.2d 578.

Appellant, in support of his contentions relating to the indictment and evidence, relies solely upon the case of Holliday v. Fields, Gov., 210 Ky. 179, 275 S.W. 642. The case supra is not analogous to the case at bar. That was a proceeding pursuant to section 227 of the State Constitution, and the provisions of chapter 49 of the Acts of the General Assembly of 1924, whereas the instant case is a proceeding under indictment of the grand jury pursuant to section 3748, Kentucky Statutes. The Holliday Case turned upon many features not analogous to the instant case. It is not necessary to extend this opinion by an elaboration upon the case supra. A reading of the case will disclose that it is not applicable to the instant case.

It is stipulated and agreed that the defendant, Bob Sanders, is and was at all times mentioned in the indictment the duly elected and acting jailer of Owen county, Ky. This dispenses with the necessity of proving that he was such officer.

Appellant in his brief insists that the court erred in admitting evidence relating to appellant's intoxication and conduct other than merely being absent from the jail. This requires a résumé of the evidence.

Howard Ellis, county judge of Owen county, testified, in substance That on the 19th day of September, 1931, he held a court of inquiry at the office of the county attorney at Owenton for the purpose of investigating certain law violations in the county, and that Earl Braden and John Wells were at that time under observance or suspects, and were in the county jail. That the defendant jailer was not present at the jail nor about the courthouse, and he instructed a deputy sheriff to notify the jailer and have him (the jailer) to bring the men out of jail, but the deputy sheriff could not find Sanders, but finally the deputy sheriff procured the prisoners and brought them into court. That the sheriff had to perform this duty because of the absence of the jailer, who could not be found. That he did not see the jailer until about 2 o'clock in the afternoon, at which time he appeared in the county judge's office and raised a disturbance with the deputy sheriff. That he was cursing, using profane, loud, and boisterous language, saying that he was running the jail and it was no business of his (the sheriff) and he did not want him over there, that, when prisoners were to be brought forth, he would bring them, and that he did not need any help. He stated: That Sanders, the jailer, appeared to be drunk, and that he smelled whisky on him. That he (county judge) tried to reason with Sanders, and told him that he had instructed the...

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1 cases
  • Matter of Starcher
    • United States
    • West Virginia Supreme Court
    • 23 Enero 1998
    ...(Ind.1990); Faught v. State, 162 Ind.App. 436, 319 N.E.2d 843 (1974); State v. Everett, 372 N.W.2d 235 (Iowa 1985); Sanders v. Commonwealth, 249 Ky. 225, 60 S.W.2d 586 (1933); State v. Pritchett, 302 A.2d 101 (Me.1973); State v. Brown, 235 Md. 401, 201 A.2d 852 (1964); People v. Kremko, 52 ......

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