Tully v. Commonwealth
| Decision Date | 17 April 1874 |
| Citation | 74 Ky. 154 |
| Parties | Tully v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM SCOTT CIRCUIT COURT.
W. S. DARNABY, A. G. RHEA, J. S. GOLLADAY, GEO. T. EDWARDS, For Appellant.
JOHN RODMAN, Attorney General, J. LAWRENCE JONES, Commonwealth's Att'y, ALVIN DUVALL, For Appellee,
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
The appellant, H. B. Tully, appeared in the Scott Circuit Court to answer the following indictment, found against him by the grand jury of Scott County: "The grand jury of Scott County, in the name and by the authority of the commonwealth of Kentucky, accuse Henry B. Tully of the offense of being accessory after the fact to the commission of a felony committed as follows, viz.: The said Henry B. Tully, on the 6th of March, 1874, in the county aforesaid, willfully and unlawfully aided and abetted Benjamin Osborn, whom he knew to be guilty of a felony by the murder of Jerry Burns, to escape beyond the reach and jurisdiction of the court in which he stands indicted for said crime, and beyond the legal and proper custody of the jailer of Scott County and of all other officers of the commonwealth, by furnishing him with money while in course of his flight with which to effect said escape, and by secreting and shielding him for that purpose from all detection or arrest and from all knowledge of citizens and officers of the commonwealth who would so arrest and apprehend him, thus knowingly and unlawfully enabling him to make good his escape and to go and remain at large to this day, against the peace and dignity of the commonwealth of Kentucky."
A demurrer having been overruled to the indictment, the appellant pleaded not guilty, and upon the hearing a verdict and judgment were rendered against him "for one hour's imprisonment and a fine of ten thousand dollars." A motion for a new trial having been overruled, as well as a motion made to arrest the judgment, the case is now here on appeal.
As an error in overruling a demurrer to an indictment constitutes no ground for reversal, the important inquiry in the case is, Do the facts alleged in the indictment constitute a public offense within the jurisdiction of the court?
By the 271st section of the Criminal Code the power of the court to arrest a judgment can only be exercised where there is no public offense charged, and although the alleged offense may be so defectively stated as to make the indictment with reference to such an offense bad on demurrer, still if any public offense has been committed by the accused within the jurisdiction of the court, conceding the facts alleged in the indictment to be true, the judgment will not be arrested.
This proceeding is based on sec. 11, art. 1, chap. 28, Revised Statutes, that provides as follows: "Accessories after the fact, not otherwise punished, shall be guilty of high misdemeanors, and fined and imprisoned at the discretion of the jury, and may be tried though their principals be not taken and tried."
At common law any one who aids the principal felon, knowing him to be guilty, in making his escape, by furnishing him money or other means for that purpose, or prevents his apprehension by harboring or concealing him, is deemed an accessory after the fact. The mode of proceeding was to indict the principal and accessory jointly, and unless proceeded against in this manner no indictment could be maintained against the accessory until the principal had been tried and convicted. The statute of 11 & 12 Victoria changed the common-law rule of practice and authorized an indictment against the accessory, although the principal had not been indicted or arrested.
By the General Statutes, chap. 29, art. 1, sec. 10, accessories before the fact are made liable to the same punishment as the principals, and may be arrested and tried although the principal offender is at large. Section 11 of the same article punishes an accessory after the fact by fine and imprisonment, although the principal has not been taken. Both of these sections are identical with the provisions of the Revised Statutes in force when this offense is alleged to have been committed.
In all such cases, both at common law and under the statute, inflicting punishment on accessories, it devolves on the commonwealth to show the guilt of the principal felon before a conviction of the accessory can be had; therefore it is necessary that an indictment against an accessory shall contain such allegations as to the commission of the crime and the guilt of the principal as would make it a good indictment against the principal; and these statements are indispensable to the validity of an indictment, whether joint or several, in a proceeding at common law or under the statute.
The statute modifying the rule so as to permit a separate indictment against an accessory does not dispense with the necessity of alleging and establishing by proof the guilt of the principal, and it is a universal rule of pleading that where the existence of facts is material to enable the prosecution to convict, or a party in a civil proceeding to recover, those facts must be alleged. "The indictment must allege every thing which it is necessary for his conviction to prove against him." (1 Bishop on Criminal Procedure, sec. 277.)
To illustrate the views here presented we need only allude to the issue made between the commonwealth and the accused and the principal instruction given by the court to the jury at the instance of the attorney for the state. The plea of not guilty puts in issue the guilt of Osborn, the principal, as well as the guilt of the appellant. Osborn is charged with the murder of Jerry Burns, and Tully, the appellant, as an accessory after the fact.
In order to convict Tully the jury...
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