135 Ky. 635 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
■ The appellants, Robert Brown, Charlie Woods, and Pearl Wiggins were indicted, tried, and convicted of the crime of robbery, the punishment of each being fixed at confinement in the penitentiary two years. Appellants ask a reversal of the judgment of conviction.
Numerous errors are assigned, but only two of them are relied on for the reversal asked. The first complaint is that the court erred in overruling appellant’s demurrer to the indictment. At the close of the indictment appears the name of Gr. A. Denham, as commonwealth’s attorney of the Twenty-Sixth judicial district, when it should have contained the name
If, as thus held, neither the county nor the commonwealth’s attorney is required by the Code to sign the indictment, it necessarily follows that the signing or printing by mistake of the name of a person to it as commonwealth’s attorney who is not such officer would not invalidate it. The mistake could have no other effect that would the absence from the indictment of the name of the commonwealth’s attorney or county attorney. It is further insisted for appellants that the trial court erred in failing to instruct the jury as to the law in respect to larceny, and that the evidence upon which they were convicted, if it showed them guilty of any crime, more directly tended to prove them guilty of larceny than robbery; and, $6 being'the amount of which the owner was deprived by them, they should have been convicted of petit larcney if convicted at all; whereas the instructions that were given only contained the law as to robbery, and compelled the jury to find appellants guilty
While the evidence was conflicting as to the identity of Brown and as to Woods’ connection with the crime, we are unable to say that it furnished no basis for the verdict of the jury. It was for the jury to say whether Brown or Bram was the money-snatcher, and whether Woods and Pearl Wiggins were aiders and abettors in the commission of the crime. We are not at a loss to understand how the jury constructed from the evidence as a whole the theory that each of the appellants contributed to the crime charged; the part assigned Woods being to get Johnson separated from Roberts that he might not assist the latter to resist the robbers, the act of Pearl Wiggins in asking of Roberts the dime to buy beer being a subterfuge to get him to pull the money from his pocket that Brown might be afforded the opportunity to forcibly take it from him, and Brown’s part of the enterprise to possess himself by force of the money after Roberts drew it from his pocket. The evidence clearly shows that
The trial court did not err in f ailing to give an instruction under which the jury might have found appellants guilty of larceny. There was indeed no proof of larceny; it was wholly and altogether to the effect that Roberts’ money was taken from him by force and with such violence and suddenness as gave him no opportunity to resist the robbers. The crime was therefore robbery, and the instruction authorizing the jury to find appellants guilty of robbery, together with the one as to the reasonable doubt, gave to the jury all the law of the case.
Wherefore the judgment is affirmed.