87 Ky. 35 | Ky. Ct. App. | 1888
DELIVERED THE OPINION OP THE COURT.
Appellant, Charles Cupp, was, jointly with Bob Cupp, indicted for the offense of willfully and maliciously cutting with a knife Morrow Kitts, with intention to kill him, of which he did not die. The
It was made ground of demurrer, and is contended in argument, that the indictment is defective, because what is called the principal offense, and the offense of aiding or abetting, can not, because not authorized by section 127, Criminal Code, be charged in one indictment. The fallacy of that position consists in the assumption that there are two, when in fact but one offense is charged in the indictment. Section 2, article 6, chapter 29, General Statutes, under which the indictment was found, provides that if any person shall willfully and maliciously cut another with a knife, or other deadly weapon, with intention to kill, if the person cut die not thereby, shall be confined in the penitentiary, and any one who shall counsel, aid or abet in the commission of the offense shall be fined or confined in jail, or both, in the discretion of the jury. “By the common law, all persons present giving aid and comfort to another committing an offense, even a felony, are regarded as principals; that is, as in legal contemplation doing the deed. Therefore, if a statute makes the doing of a thing criminal, it in-
It does not make any difference that while the actual cutting is made by the statute a felony, the one present aiding and abetting is guilty only of a misdemeanor; for both are guilty of the same offense, the one as principal and the other as accessory, and to require two distinct indictments and two trials, when the circumstances of the offense would have to be stated in each indictment and proved at each trial, would be needless, and certainly is not required by the Code. In the case of the Commonwealth v. Patrick, 80 Ky., 605, referred to by counsel, the indictment was held bad, not because both the principal and accessory were charged in- it, but for the reason that the offense, being a single act of shooting, could not be done by both, but that one being the principal and the other accessory, or aider or abettor, they should have been so respectively charged. But in the indictment, in this case, the defendants are charged alternatively as principal and as aider or abettor, which may be properly done under the Code.
It seems to us the jury could not have used language more definite and certain than was used in their verdict, for no one could be misled or in doubt as to their meaning.
It appears that on the occasion of the cutting, which was done after night, the defendants, Bob, about eighteen, and Charles, about sixteen years of age, and several other boys, were, without objection, sitting around the stove in the back part of a grocery store of which
The circumstances of this case, as shown by the-record before us, are such as might have justified the-jury in concluding that when Charles Cupp cut Kitts with the knife he believed, and had reasonable grounds-to believe, his brother was in danger of losing his life, or suffering great bodily harm at the hands of Kitts. Or if not, they might and would have been fully authorized in finding that the cutting was done-in sudden heat, and passion. The question then arises whether appellant was, by reason of errors of law occurring, denied a fair presentation of either of these issues to the jury. Whether Kitts did or did not uso
It appears that after the argument to the jury in behalf of the defendants had closed, and just as the attorney for the Commonwealth began his argument, he, standing in front of the jury, told Kitts, the prosecutor, to come around where he was, and when he had done so, the attorney put his hands on the face of Kitts and said to. the jury: “ Gentlemen, look at that scar on his face; is that worth only fifty dollars?” That conduct on the part of the attorney appears to have been tolerated by the court, notwithstanding the objection of the defendants.
It is not the interest nor is it presumed to be the intention of the Commonwealth to procure the conviction of persons accused of crime by illegal means. The Criminal Code, in order to procure fair trials, prescribes the mode and order in which testimony may be given to the jury, and courts cannot afford to permit a departure therefrom when the object and effect is to give to either party an undue advantage of the other.
Although we do not believe the court intended to do any wrong to the defendants, still they did not, nor ■could, in the meaning of the law, have a fair and impartial trial under the circumstances shown by the bill ■of exceptions to have occurred upon the trial of appellant, and the judgment is reversed for a new trial.