86 S.W.2d 309 | Ky. Ct. App. | 1935
Reversing.
O.C. O'Brien has prayed an appeal from a judgment convicting him of maintaining a common nuisance, and fixing his punishment at a fine of $200. *573
The only ground urged for reversal is that the court erred in substituting O.C. O'Brien for Kelly O'Brien, against whom the indictment was returned.
The facts are: The persons charged in the indictment with the offense of maintaining a common nuisance were Wicks Hawkins, Kelly O'Brien, and John H. Staker. After the indictment had been returned the following order was entered by the court:
"It appearing to the satisfaction of the court that one of the defendant's names is O.C. O'Brien, it is ordered that the further proceedings in this case as to him shall be in the defendant's true name of O.C. O'Brien, indicted by the name of Kelly O'Brien."
After O.C. O'Brien had been arrested, he moved the court to set aside the order substituting him as defendant in the place of Kelly O'Brien named in the indictment on the ground stated in his affidavit filed with the motion and reading as follows:
"The affiant, O.C. O'Brien, says that the Kelly O'Brien named in the indictment herein and jointly indicted with Staker and Hawkins, herein, was during all of the time named in the indictment herein and up until February 20, 1935, the owner of a one half interest in the business described in the indictment jointly with his codefendant Wicks Hawkins and during all of said time the affiant was only an employee of the said Kelly O'Brien and Wicks Hawkins were partners in the operation of said business and as partners continued said business up until the 6th day of February, 1935, when same was purchased by this affiant.
"That Wicks Hawkins as such partner during said time was in active and full control of the operation of said business, and of said premises, and that the said Kelly O'Brien is the defendant named in said indictment."
The motion was overruled, and, as before stated, O.C. O'Brien was convicted.
The commonwealth insists that the action of the court in directing the prosecution to be carried on against O.C. O'Brien was authorized by section 125, Criminal Code of Practice, reading as follows. *574
"An error as to the name of the defendant shall not vitiate the indictment, nor proceedings thereon, and if his true name be discovered at any time before execution, an entry shall be made on the record of the court of his true name, referring to the fact of his being indicted by the name mentioned in the indictment, and the subsequent proceedings shall be in the true name, substantially as follows: The Commonwealth of Kentucky against A. B., indicted by the name of C. D."
This section has been construed in a number of cases, but the case nearest in point and on which the commonwealth relies is Commonwealth v. Jenkins,
Wherefore the appeal is granted, and the judgment reversed, and cause remanded for proceedings consistent with this opinion.