3 Ky. Op. 264 | Ky. Ct. App. | 1869
delivered the opinion of the court:
Appellee was indicted in the Kenton circuit court for an assault with intent to rob. After a trial and verdict of guilty by the jury, he moved the court to arrest the judgment, and to dismiss the indictment. Both of these motions were sustained, and the Commonwealth has appealed.
The indictment was found under section 2, article 5, chapter 28, 1 Revised Statutes, 381, which reads as follows: “If any person, with an offensive weapon or •instrument, shall unlawfully or maliciously assault, or shall by menace, or in or by any forcible or violent manner, demand any money, goods or chattels, bond, bill, deed or will, or other evidences of right, or any thing, of or from any other person, with a felonious intent to
It is charged in the indictment that appellee did, on a certain day, before the finding of the same, unlawfully and maliciously, with intent to commit a robbery on the person of Gerald Maloney, in a forcible and violent manner, demand of him money and currency, notes, bonds, and other personal property of him, said Maloney, then and there being on his person; and then and there by menaces, and by putting in fear, feloniously, unlawfully, and maliciously intending to rob him of his money, currency, notes, and other personal property, as aforesaid.
The first objection taken to the indictment is, that the personal property, of which appellee is charged with the intention of robbing the person named, is not described with sufficient particularity; that it should be described “ precisely as in larceny, of which it is only an aggravated species.”
It will be found, by a comparison of the charge, as laid in the indictment, with the statute under which the offense, as herein recited, was found, that the offense is therein described in the words of said statute; and that, as a general rule, is sufficient. Where the words of the statute are descriptive of the offense, the indictment shtiuld follow the language, and expressly charge the desci’ibed offense on the defendant, or it will be defective. (1 Whar. Amer. Crim. Law, sec. 364.)
There is nothing in this case which brings it within the exception to the general rule; and, as the appellee was indicted under said statute, and the indictment conforming the charge to its language, a more particular description of the personal property does not seem to be necessary.
The offense is complete, either by making an assault with an offensive weapon or instrument, with the felonious intent to rob the person assaulted; or by demanding money, or other personal property-, with such felonious intent to rob by menace, or in or by a forcible and violent manner; and it is not, therefore, necessary to say that the assault, menace, force, &c., w.as made against the will of the person assaulted.
And in regard to' the other objections to the indictment, they are sufficiently answered by what has already been said.
Wherefore, the judgment is reversed, and the cause remanded, with directions to overrule the motion to dismiss the indictment. But as there has been an arrest of the judgment, and this court cannot revise that order, having no jurisdiction of it, a new trial must be awarded, and further proceedings had, not inconsistent with this opinion.
