42 S.W.2d 341 | Ky. Ct. App. | 1931
Reversing.
The appellant, Clarence Johnson, was indicted and convicted for the offense of unlawfully obstructing justice. Upon a trial he was found guilty and punishment fixed at a fine of $50 and imprisonment of twenty-five days in the county jail. To reverse that judgment, he prosecuted this motion for an appeal, setting out a number of grounds of complaint. We will not take up all the grounds in the order set out in brief for appellant, but will content ourselves with a rearrangement of the material questions here presented.
First, the appellant complains that the indicement is bad in that it does not substantially follow the language of the statute. The appellant was convicted of the common-law offense of obstructing justice by resisting an arrest for an offense charged to have been committed in the presence of the officer attempting to make the arrest. The indictment in the accusatory part "accuses the appellant, Clarence Johnson, of the offense of unlawfully obstructing justice." In the descriptive part, the indictment reads: "The said Johnson heretofore, to-wit: on the _____ day of _____ A.D., 193_, and before the finding of this indictment in the County aforesaid, did unlawfully and wilfully obstruct justice by resisting an arrest from a duly authorized, qualified and acting deputy sheriff, to-wit: Jack Skaggs, at Chalybeate Church, after he, the said Johnson, had committed a public offense in the presence of the said Jack Skaggs, to-wit: disturbing public worship by refusing to surrender himself to arrest when commanded so to do and offering resistance, force and violence against said arrest, and thereby obstructing justice and the said Skaggs was duly authorized acting and qualified deputy sheriff at all time aforesaid." The indictment is correct and charges the offense for which the defendant was convicted. In the descriptive part it is specifically alleged that the arrest was by a qualified *339
deputy sheriff for an offense committed in his presence and attempts to describe the offense for which the arrest was to be made, that of disturbing public worship, and by refusing to surrender himself and by offering resistance by force and violence. It is inferentially argued in the appellant's brief that the indictment is bad for duplicity in that it attempts to describe both the common-law offense of obstructing justice and the graver offense denounced by Ky. Stats., sec. 1148a-7. A close reading of the indictment fails to convince that that state of record exists. A close search of the bill of exceptions nowhere discloses that any demurrer was filed to the indictment. If the conditions existed as the appellant claims, it would not avail in the absence of a demurrer to the indictment. Therefore, this defect is waived. Sturgeon v. Commonwealth, 37 S.W. 679, 18 Ky. Law Rep. 668; Wells v. Commonwealth,
Where no objections are made only the sufficiency of an indictment is before the court. Tipton v. Commonwealth,
It is next argued that the court erred in refusing to give the whole law of the case. In support of this contention, we are cited to the case of McGeorge v. Commonwealth of Kentucky,
The motion for an appeal is therefore granted, and the judgment is reversed.