193 S.W.2d 448 | Ky. Ct. App. | 1946
Reversing.
Appellant, Roy Moore, was indicted under KRS
Moore was convicted in the Knox circuit court on November 5, 1943, of the offense of dwelling house breaking and his punishment fixed at confinement in the penitentiary for nine years. While his appeal from the judgment was pending in this court Moore and several others escaped from the Knox County jail on April 11, 1944. It does not appear that his escape was called to the attention of this court and on June 23, 1944, we reversed the judgment convicting him of house breaking, Moore v. Commonwealth,
The general demurrer to the indictment was properly overruled. It is provided in KRS
It is apparent that the indictment did not charge appellant with a felony under subsection (2) of the applicable statute because it did not aver that he was being held in jail after having been convicted of a felony, but the indictment is sufficient to charge him with the misdemeanor under subsection (1) of the statute since it alleged he was confined in jail on a charge of house breaking, which is equivalent to charging that he was held in jail under a capias. However, the court instructed, not on the misdemeanor as charged in the indictment, but on the felony covered in subsection (2) of the statute, a higher crime than the one for which appellant was indicted. This was reversible error since one may not be convicted of an offense of a higher degree than that charged in the indictment. Criminal Code of Practice, sec. 265; Madden v. Commonwealth,
Counsel for appellant is in error in arguing that his client used no force in breaking jail and was entitled to a directed verdict under the opinion in Crosby v. Commonwealth,
It is erroneously insisted by appellant that as his conviction for house breaking was reversed and our opinion said he was not guilty of that offense, Moore v. Commonwealth,
This same question was presented to the Supreme Court of Mississippi in Jones v. State,
On another trial the court will instruct on the misdemeanor charged in the present indictment. Or should the Commonwealth desire, the indictment may be remanded to the grand jury, and in the event appellant is indicted for the felony provided in KRS
The judgment is reversed.