Buchannon v. Commonwealth
95 Ky. 334
Ky. Ct. App.
1894
Check Treatment
JUDGE LEWIS

DELIVERED THE OPINION OE THE COURT.

The indictment in this case charged appellants with the offense denounced in section 96, subdivision 12, chapter 182, Acts 1891-92-93, entitled “ An act relating to crimes and punishments,” approved April 10, 1893, as follows; “If two or more persons shall unlawfully confederate or band themselves together and go forth armed or disguised for the purpose of intimidating or alarming any person, or to do any felonious act, they shall each, on conviction, bo imprisoned in the penitentiary not less than six nor more than twelve, months.” (The Kentucky Statutes, section 1223.) But it is stated in the indictment not only they were guilty of the particular offense described in that section, but that, in pursuance of the confederating and banding together, they did alarm, disturb and beat one Stephen Oombs an d iuj uro his property. And the lower court instructed the jury they might, upon the latter hypothesis, fix the punishment at confinement in the penitentiary not less than twelve nor more than eighteen months.

The indictment seems to have been drawn and the jury instructed upon the theory that the section ipioted was intended to be simply an amendment to, not a substitute for, the entire act approved April 11, 1873, known as the “Ku-klux law.”

Section 2 of that act makes it a distinct offense for two or more persons to confederate or band themselves together for the purpose of intimidating, alarming or dis*336turbing any person of persons, or to do any felonious act, and fixes the punishment at confinement in the penitentiary not less than six nor more than twelve months, or, in discretion of the jury, a fine not less than one hundred nor more than five hundred dollars, and imprisonment in the county jail 'not less than three nor more than six months. While section 3 makes it an offense for two or more persons to unlawfully confederate or band together and go forth armed or disguised; though punishment is the same as prescribed in section 2. But section 4 provides that if any injury results to any person or property by reason of the unlawful acts denounced in the preceding-sections, those engaged shall, on conviction, be confined in the penitentiary not less than twelve nor more than eighteen months.

As willbo©bserved, in order to make a complete offense under section 96 of the act of April 10, 1893, it is essential not only that two or more persons unlawfully confederate or band themselves together, as provided in section 2 of the act of April 11,1873, but that they go forth armed or disguised for the purpose of intimidating or alarming persons or to do a felonious act, as denounced by section 3 of that act. But it is manifest both sections wore intended to be superseded or repealed by section 96 of the act of 1893. The main question, however, is whether that section has operated or was intended to repeal section 4 of the act of 1873; for if so, then it was an error of court affecting substantial rights of appellants to instruct the jury that twelve months was the minimum and eighteen as maximum punishment in case injury had resulted to the person and property of Combs.

The act of April 10, 1893, was, it seems to us, intended *337to be a complete system of statutory law relating to crimes and punishments, and as a consequence to supersede or repeal all existing statutes on that subject. Eor, under the comprehensive title of crimes and punishments, every offense mentioned in chapter 29, General Statutes, having the same title, as well as all others provided against by special acts, are considered and treated of in that act, which is formally divided into articles relating to different classes of crimes and subdivisions of each class. And as section 96, embracing only provisions of sections 2 and 3 of the act of 1873, is all on the subject the Legislature •deemed necessary to engraft in the act of 1893, the conclusion is entirely reasonable that it was not intended that section 4, or any other part of the act of 1873, should be ■longer in force. This interpretation does not at all leave' .a person injured by reason of such unlawful acts without redress, or the person or persons who do the injury free from punishment.

As, therefore, section 4 of the act of 1873 was not in force when the alleged offense was committed, it was error to instruct the jury to fix any other kind or degree of jranishmeut than that prescribed in section 96, act of • April 10,1893 ; and the judgment is reversed for a new trial consistent with this opinion,