Weisiger v. Commonwealth

Decision Date15 June 1926
Citation215 Ky. 172
PartiesWeisiger v. Commonwealth.
CourtUnited States State Supreme Court — District of Kentucky

1. Indictment and Information — Indictment Charging Conspiracy to Take and Detain Woman Against Her Will Held to Charge but One Offense (Ky Stats., sections 1158, 1241a1; Criminal Code of Practice, sections 122, 124). — Indictment charging conspiracy under Ky. Stats., section 1241a1, to take and detain a woman against her will contrary to section 1158, charges only one crime, and where indictment conforms to Criminal Code of Practice, sections 122, 124, demurrer and motion to require Commonwealth to elect were rightly overruled.

2. Conspiracy. — Conspiracy to take and detain woman in violation of Ky. Stats., section 1158, held within section 1241a1, denouncing conspiracies to commit felonious acts.

3. Abduction. — Evidence that accused negro invited white girls into his fully occupied car, and that on their refusal his companions pursued them, held to warrant conviction of conspiracy to violate Ky. Stats., section 1158.

4. Abduction. — Defense that accused was too drunk to form intent of taking and detaining woman against her will held untenable, in view of evidence of his skillful driving of automobile (Ky. Stats., section 1158).

Appeal from Boyle Circuit Court.

C.C. BAGBY for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellees.

OPINION OF THE COURT BY COMMISSIONER SANDIDGE.

Affirming.

Connie Weisiger, Charles Gordon and Cecil Shelby were indicted by the grand jury of Boyle county, under section 1241a-1, Kentucky Statutes, for feloniously conspiring, confederating and banding themselves together to do a felonious act. Appellant, Weisiger, was tried separately, was found guilty and by the judgment herein was sentenced to confinement in the penitentiary at hard labor for one year. He prosecutes the appeal.

It is insisted that the trial court erred in overruling appellant's demurrer to the indictment and in overruling his motion to require the Commonwealth to elect, both contentions being predicated upon the theory that the indictment was duplicitous. That alleged error is not given much attention in the brief filed for appellant, only a short paragraph being devoted to it. The contention can not be sustained. The indictment is much longer than was necessary, but a consideration of all its allegations discloses that the only crime charged was that denounced by the statute, supra. The accusatory part of the indictment clearly and concisely charges the three defendants with having unlawfully, willfully and feloniously conspired and confederated together to commit a felony, to-wit, to take and detain a woman and women against her and their will, denounced as a felony by section 1158, Kentucky Statutes, and the portion of the indictment specifying the manner in which the crime charged was committed clearly states the way and manner in which it is alleged to have been done. The indictment contains a great deal of surplusage, in that it pleaded all of the facts which by way of evidence the Commonwealth expected to prove to establish that the crime charged, that is, that the three defendants indicted had conspired to commit a felony, had been committed by them. When considered in its entirety, however, it is obvious that the indictment was intended to and did charge the defendants with only the one crime, that is, conspiring, confederating and banding themselves together to commit a felonious act, the crime denounced by section 1241a-1, supra. It appears to conform in all essential particulars to section 124, of our Criminal Code of Practice, in that it was direct and certain as regards the party charged, the offense charged, the county in which the offense was committed and the particular circumstances of the offense charged. In conformity with the provisions of section 122 of the Criminal Code, the statement of the acts constituting the offense appears to have been alleged in such manner as to enable a person of common understanding to know what was intended and with such degree of certainty as to enable the court to pronounce judgment according to the right of the case. Those are the standards set by our Criminal Code of Practice for determining the question, and the trial court did not err in overruling the demurrer and in overruling appellant's motion to require the Commonwealth to elect.

It is insisted for appellant that the demurrer to the indictment should have been sustained upon the further ground that the felonious act which appellant and his codefendants were charged with having conspired to commit is not within the contemplation of section 1241a-1, Kentucky Statutes, and that though it be conceded that they did conspire, confederate and band themselves together for the purpose of committing the felony denounced by section 1158, Kentucky Statutes, to do so does not constitute an offense under section 1241a-1. That question was settled finally, however, by this court in Phelps v. Commonwealth, 209 Ky. 318, wherein it was held that a conspiracy to do "any felonious act" is punishable under section 1241a-1. The question was fully dealt with in that opinion and need not be further elaborated. Appellant and his codefendants are charged by the indictment herein with having conspired and confederated to commit the crime denounced by section 1158, Kentucky Statutes, reference to which makes it appear to be a felony. Therefore, they were charged with having conspired to do "a felonious act," and under this court's opinion in the Phelps case, supra, a conspiracy to commit any felonious act is within the contemplation of section 1241a-1, supra. Therefore, the trial court properly overruled the demurrer to the indictment.

It is earnestly insisted for appellant that the verdict herein is flagrantly against the evidence. These facts appear in the record: Louise Dunn, Mary Hogue, Ruby Dunn, Catherine Dunn, Bertha Hogue and Ada Carter, all young white girls, residing in ...

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2 cases
  • Acree v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • 25 d5 Março d5 1932
    ...Carr v. Com., 25 S.W. 886, 15 Ky. Law Rep. 826; Commonwealth v. Morton, 140 Ky. 628, 131 S.W. 506, Ann. Cas. 1912B, 454; Weisiger v. Com., 215 Ky. 172, 284 S.W. 1039; Riggsby v. Com., 232 Ky. 226, 22 S.W.2d Diamond v. Com., 237 Ky. 374, 35 S.W.2d 554. Section 1164 creates and fixes the puni......
  • Newton v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • 17 d2 Maio d2 1932
    ... ... forth armed. At the same time it was pointed out that such ... additional allegations were mere surplusage, and need not be ... proved, and we have subsequently ruled that such allegations ... did not render the indictment demurrable. Weisiger v ... Commonwealth, 215 Ky. 172, 284 S.W. 1039. The indictment ... under consideration followed the statute and aptly stated the ... facts constituting the offense, and there can be no doubt ... that the language employed was clearly sufficient to apprise ... the accused of the crime charged ... ...

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