Strunk v. Commonwealth

• Decision Date: 31 May 1946
• Citation: 194 S.W.2d 1002,302 Ky. 464
• Parties: STRUNK v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

194 S.W.2d 1002

302 Ky. 464

STRUNK v. COMMONWEALTH.

Court of Appeals of Kentucky

May 31, 1946

Appeal from Circuit Court, Whitley County; Flem D. Sampson, Judge.

Andy Strunk was convicted of obstructing justice, on his plea of guilty, and he appeals.

Reversed.

Joe S. Feather, of Williamsburg, for appellant.

Eldon S. Dummit, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.

SIMS Justice.

Andy Strunk, unrepresented by counsel, personally entered a plea of guilty in the Whitley Circuit Court to an indictment purporting to charge him with the offense of obstructing justice. No jury was impanelled to assess the penalty and the judge fixed it at a fine of $500 and 60 days imprisonment in the county jail.

The motion for a new trial assigned two errors: 1. The indictment did not state a public offense; 2. the judge was without authority under § 258 of the Criminal Code of Practice to assess appellant's punishment above the minimum for the offense attempted to be charged in the indictment, and that a jury should have been impaneled to fix his punishment if the judge was not content to impose the minimum for this common-law misdemeanor, the punishment for which is a fine in any sum or imprisonment in the county jail for any length of time, or both such a fine and imprisonment.

The material part of the indictment reads:

'The grand jury of Whitley County, in the name and by the authority of the Commonwealth of Kentucky, accuse Andy Strunk of the offense of obstructing justice:

'Committed in manner and form as follows: The said Andy Strunk * * * within 12 months next before the finding of this indictment and in the County and State aforesaid, did unlawfully, wilfully obstruct the grand jury of Whitley County * * * by persuading, contriving and intending to impede and obstruct said investigation, by corruptly enticing, soliciting and persuading one C. B. Upton to protect him, the said Strunk, from being indicted by the grand jury, the said C. B. Upton being County Attorney * * * and the said Strunk at the time he attempted to so corruptly entice, solicit and persuade the said Upton to protect him knew that the grand jury was investigating the selling of whiskey by said Strunk.'

No demurrer was filed to the indictment, but none was necessary if the indictment charged no public offense. The rule is that where an indictment fails to state a public offense, the sufficiency thereof may be raised on appeal although no demurrer was filed; but where the indictment defectively states a public offense, such defect is waived unless a demurrer is filed. Maggard v. Commonwealth, 257 Ky. 414, 78 S.W.2d 315.

Section 122(2) of the Criminal Code of Practice provides that an indictment shall contain a statement of the acts constituting the offense charged; and § 124(4) provides that the particular circumstances of the offense must be charged in the indictment if they are necessary to constitute a complete offense. The indictment before us fails to...