188 Ky. 76 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
The appellant, Allen Brewer, was convicted in the Pike circuit court of the offense of unlawfully, willfully and feloniously accepting and receiving chickens which had been stolen by persons from whom it is charged he received them, and which fact he knew at the time, and under the verdict of the jury he was sentenced to serve •a term of six months in the county jail. To reverse the judgment rendered thereon, he prosecutes this- appeal.
A number of alleged errors are relied on to secure a reversal of the judgment, but because of the condition of the record we are without authority to consider any of them.
We find a document with the record which it is claimed is a bill of exceptions, but the only certificate thereto is that of the official stenographer. It contains what purports to be the evidence heard upon the trial, but it is neither certified to by the clerk nor approved by the judge. At its beginning there is a statement that the defendant filed a demurrer to the indictment, which was
In the eases of Southern Railway Co. v. Thruman, 25 Ky. Law Rep. 804, and Craves’ Committee v. Lyons, 166 Ky. 446, it was held that before the stenographer’s transcript of the testimony, made as required by section 4644 of the statutes, could be treated as a bill of exceptions, it must not only be approved by the court who tried the case, but there must also appear an order of the court filing the transcript. In the latter case, upon this point, it was said:
“A bill of exceptions must always be made a part of the record by an order.of the court. The bill must be prepared and presented to the judge of the court for his approval and signature during the term of the court at which the judgment becomes final, unless further time for its preparation is given by an order of the court. Civil Code, section 337, subsection 2. It was never intended that the stenographer’s bill of evidence should supply the place of and dispense with the necessity of a bill of exceptions filed by an order of the court. The bill of evidence in the case at bar, which seems to have been ■ prepared by the official stenographer and approved by the judge, might be treated, by agreement, no doubt, as a sufficient bill of exceptions in this case, but there is no order of court showing its approval or the filing of it or making it any part of the record, or whether it was prepared or presented during the time required by law.”
If it be conceded that an order contained in the stenographer’s transcript of evidence showing that it was filed as a bill of exceptions be sufficient for that purpose, as was held in the case of McGeever v. Kennedy, 19 Ky. Law Kep. 845, that fact could not afford any relief to appellant here because the stenographer’s transcript constitutes the only purported bill of exceptions, and, as stated above, it was not approved by the court.
Without a bill of exceptions showing what transpired at the trial, the only matter which may be considered by this court on appeal is whether the pleadings are sufficient to sustain the judgment. Settle v. Gibson, 147 Ky. 616; Bobbitt v. Blakemore, 153 Ky. 170; Clark v. Wallace Oil Co., 155 Ky. 836, and Tyler v. Woerner, 158 Ky. 710. The only pleading in this case is the indictment, and it is claimed that it is bad for duplicity. The language of, the indictment which it is claimed constituted the alleged duplicity, is:
“The said Allen Brewer on the 15th day of September, 1919, in the county aforesaid, did unlawfully, willfully, and feloniously accept and receive from Robert Scalf, Lee Brewer, ‘Dirty’ Bill, Homer Bowens, Lee England, Millard Kinney, Hi Robinson, Bully Roberts, Eugene Michaels, Elden Carter and C. Robinson, and from each of them, chickens, of more value than two dollars, not his own nor the property of either of said parties, but which had been unlawfully, willfully and feloniously taken, stolen and carried away from the possession of the owner by the said Robert Scalf, Lee Brewer, ‘Dirty’ Bill, Homer Bowens, Lee England, Millard Kinney, Hi Robinson, Bully Roberts, Eugene Michaels, Elden Carter and C. Robinson, with the felonious intention to permanently deprive the owner thereof.”
We find no foundation in the quoted language for the objection made to the indictment. There is nothing in it to show that there was moré than one unlawful receiving of the stolen chickens by the defendant, or that the persons named as having stolen the chickens delivered them to the defendant at different times. Prom tñe charges made in the indictment those persons could have made but a single delivery jointly, hence there is no duplicity appearing from the face of the indictment. The only other place where this ground of objection could appear in the case is in the evidence, which, for the reasons stated, is not before us.
