92 Ky. 1 | Ky. Ct. App. | 1891
delivered the opinion oe the court.
The appellant and Jerry Hampton and others were indicted for the murder of Joseph Bowling by cutting him with a knife — Jerry Hampton being the actual perpetrator of the deed, and the appellant and others being aiders and abettors. It appears from positive and uncontradicted proof that, while Jerry Hampton and another were engaged in a difficulty with each other, the appellant and Matison Benge, without any provocation or excuse whatever, stabbed and killed Joseph Bowling, an unoffending and unresisting person.
The court instructed the jury that they could find the appellant guilty as the actual perpetrator of the deed, notwithstanding he was indicted as aider and abettor only. The appellant complains of this instruction upon the ground that one indicted as aider and abettor only, can not be convicted as the actual perpetrator of the deed. This contention is a mistaken view of the law. It is based upon the theory that the actual perpetrator of the deed and the aider and abettor are
Tbe Criminal Code, see. 122, provides: “ The indictment must contain a statement of tbe acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” Here the indictment charges in ordinary and concise language the part that the principal and aider and abettor took in the murder; and as 'each, in law, was principal and could be convicted under the indictment for doing the acts that the indictment imputed to the other, the indictment is sufficient to authorize the conviction.
The indictment in the case of Mulligan v. The Commonwealth, 84 Ky., 229, charging one as aider and abettor, but not charging who was the principal, &c., was held not sufficient. But here the principal and his supposed acts are charged in the indictment, and the law makes them the acts of the appellant; but it turns out that the appellant was the actual perpetrator instead of • the alleged perpetrator; but he is not misled by the failure of proof as to the alleged# perpetrator, because he, according to the proof, has done with his own hand what he, in' legal contemplation, is charged with having done by the band of another.
The affidavit for a continuance is defective : First, in not showing what steps had been taken to procure the attendance of the witnesses ; and that they were within the jurisdiction of the court. Second, in not stating that the appellant believed their alleged testimony was true.
The judgment is affirmed.