186 Ky. 503 | Ky. Ct. App. | 1920
Opinion of the Court by
Affirming.
Appellant was convicted of robbery and his punishment fixed at four year A confinement in the penitentiary. As grounds for reversal be insists that the court erred in overruling his demurrer to the indictment and his motion in arrest of judgment, and that the verdict was the result of prejudice and not supported by the evidence.
It is urged the indictment is defective, first, because it does not sufficiently describe the property alleged to have been taken, and, second, because it does not allege a felonious assault as well as a felonious taking. The indictment is as follows:
“The Commonwealth of Kentucky against George Cosby and Harrison Miller.
“The grand jury of Harrison county, in the name and by the authority of the Commonwealth of Kentucky, accuse George Cosby and Harrison Miller of the crime of*504 robbery, committed as follows, to-wit: The said Greorge Cosby and Harrison Miller on the-day of November, 1918, in the county and state aforesaid before the finding of this indictment' did unlawfully and feloniously take about eighteen dollars in money, the property of William Coldiron, from his person, by force and putting said Coldiron in fear of some immediate danger to his person against the will and without the consent of the said Cold-iron, against the peace and dignity of the Commonwealth of Kentucky.
“ J. C. Dedman,
Attorney for the Commonwealth.”
Robbery and larceny are common law offenses, denounced but not defined by our statutes, and but different degrees of the same crime. Criminal Code, section 263: Commonwealth v. Prewitt, 82 Ky. 240.
As is said in Bishop’s New Criminal Law, section 1159: “The indictment for robbery charges a larceny, together with the aggravating matter which makes it in the particular instance robbery. ’ ’
Hence the property alleged to have been taken must be described in the same way in an indictment charging either robbery or larceny. Bishop’s New Criminal Procedure, section 1002; Gregory’s Criminal Law, section 351; Roberson’s Kentucky Criminal Law and Procedure, volume 1, page 395.
As authority that the property alleged to have been taken should have been more particularly described in the indictment than as “about eighteen dollars in money,” appellant cites and relies upon only the case of Rhodus v. Commonwealth, 2 Duvall 160, which so holds.
But that case was decided before the enactment of section 135 of the Criminal Code, which provides:
“In an indictment for the larceny or embezzlement of money, or United States currency, or bank uotes, it is sufficient to allege the larceny or embezzlement of the same without specifying the coin, number, denomination or kind thereof.”
It is therefore apparent the Rhodus case is no longer authority, in so far at least as money, etc., is concerned and that a compliance with the Code provisions in describing same is all that is now required hi an indict' ment charging either' a larceny or- robbery.
As to the next objection little need be said because it is quite apparent the indictment charges that the defendant “unlawfully and feloniously” took from the person of another property of value by force and putting him in fear, &c. Every element of robbery is alleged to have been committed unlawfully and feloniously and counsel is mistaken in assuming that the words “unlawfully and feloniously” apply only to the taking.
The insistence that the evidence was not sufficient to support the verdict is wholly without merit. The robbery was thoroughly established. The complaining witness positively identified the appellant as one of the two persons who robbed him, and appellant admitted procuring whiskey for him a very short time before and near where he was robbed. Nor is the fact that appellant’s punishment was fixed at four years’ confinement in the penitentiary, when the jury might have fixed it for any length of time from two tó ten years, any evidence of prejudice upon the part of the jury.
Judgment affirmed.
