53 S.W.2d 362 | Ky. Ct. App. | 1932
Reversing.
This is a prosecution against appellants, James and J.V. Grise, upon an indictment returned by the Butler circuit court attempting to accuse them of the offense denounced by section 1241a-1 of the 1930 Edition of Carroll's Kentucky Statutes, which consists in conspiring or confederating and banding together of two or more persons for the purpose of doingcertain things named in the statute, one of which is the commission *221 of a felony. Upon their trial they were convicted, and appellant, James Grise, was punished by confinement in the penitentiary for one year, while his brother, the appellant, J.V. Grise, was confined in the Reform School until he reaches the age of twenty-one years, since it was admitted that he was under seventeen years of age at the time of the doing of the acts complained of so as to bring him within the jurisdiction of the juvenile court.
Their motion for a new trial was overruled, and from the judgment pronounced on the verdict, they prosecute this appeal, urging a number of grounds, among which are: (1) The insufficiency of the indictment, and (2) that appellant, J.V. Grise, who was admittedly a juvenile, cannot be prosecuted in the circuit court without having first been apprehended by the juvenile court of his county and by it properly transferred to the circuit court, which the record does not disclose was done. A third ground is, that the verdict is not sustained by sufficient evidence; but, since we have concluded that grounds 1 and 2 are well founded, neither the third nor any other one relied on will be discussed or determined, but the first two will be considered and disposed of in the order named.
1. The indictment in this case in its accusatory part, and in which the offense is named, charges defendants "of the offense of unlawfully banding and confederating together; committed as follows, to wit." Then follows what is usually designated as the "descriptive" part of the indictment, in which appellants are charged with willfully and feloniously going forth and intimidating and wounding one James Rosser, and of doing other acts, none of which are charged as having been maliciously done. But, perhaps, that would not be necessary if the offense with which appellants are accused had been properly designated, and we mention the failure of the indictment to charge the acts as having been done with malice only for the purpose of showing that the acts so charged did not in and of themselves constitute a felony.
In the case of Deaton Boggs v. Commonwealth,
There is no alleged purpose of the charged confederation in this case, and its omission from the named offense renders the indictment of no avail, since the conspiracy may have been formed for some innocent purpose, or for one not denounced by the statute, although unlawful. The principle announced in the Deaton Case has been expressly approved by this court in the cases of Patrick v. Commonwealth,
2. The record uncontradictedly discloses that the appellant, J.V. Grise, at the time of the alleged commission of the offense by him, was an infant under 17 years of age, but it nowhere appears in the record that he was ever apprehended by, or brought before, the juvenile court of Butler county, nor that such court *223
transferred the charge against him to the Butler circuit court before the indictment against him was found in the latter court. We held in the case of Waters v. Commonwealth,
A number of later cases approving the doctrine of our opinion in the Waters Case have been rendered, and we have steadfastly followed it. It is therefore apparent that the judgment against J.V. Grise was also unauthorized for this additional reason.
Wherefore, the judgment is reversed as to each defendant, with directions to sustain their motion for a new trial and to set aside the judgment, and for proceedings consistent with this opinion.