107 S.W.2d 292 | Ky. Ct. App. | 1937
Affirming. *319
Willie Robertson and Charlie Parker were jointly indicted for unlawfully and maliciously assaulting Otis Bond with an intent to rob him, a crime defined by section 1160 of the Kentucky Statutes. On his separate trial Willie Robertson was convicted and his punishment fixed at confinement in the penitentiary for twenty-one years. He urges as grounds for reversal (1) that his demurrer to the indictment should have been sustained; (2) irregularities in impaneling the jury; (3) the verdict is flagrantly against the evidence; (4) errors in the admission and rejection of evidence; (4) errors the court erred in refusing to require the commonwealth's attorney to testify when called as a witness by the defendant.
In the accusatory part of the indictment the defendants were accused "of the crime of unlawfully and maliciously assaulting another with an offensive weapon or instrument with an intent to rob or commit a robbery upon such person." In the descriptive part the words "unlawfully, maliciously and feloniously" are used. It is insisted that the word "feloniously" should have been used in the accusatory part of the indictment, and. Hocker v. Commonwealth (Ky.)
In the Biggs Case the indictment was for grand larceny, and it was held that the word "feloniously" should have been used in the descriptive part, grand larceny being a common-law offense. As pointed out in those and many other cases, where a statute fixes a penalty for a common-law offense, the indictment must set out the constituent elements of the offense, but where the offense is a statutory one and is described by the statute an indictment which follows substantially the language of the statute is sufficient. Gravitt v. Commonwealth,
The crime for which appellant was indicted is a statutory one and the word "feloniously" does not appear in the statute. Section 1160 of the Statutes reads:
"If any person, with an offensive weapon or instrument, shall unlawfully and maliciously assault, or in or by any forcible and violent manner, demand any money, goods or chattels, bond, bill, deed or will, or other evidences of right, or other thing of value of or from any other person, with an intent to rob or commit a robbery upon such person, he shall be guilty of a felony and upon conviction shall be punished by confinement in the State Penitentiary for twenty-one years or for life, or by death, in the discretion of the jury."
It will be noted that the accusatory part of the indictment in designating the offense follows the language of the statute literally. In Howerton v. Commonwealth,
*321"The objection is without merit. The crime charged is purely statutory, and being defined by the statute, and the language of the statute followed by the indictment, an allegation of felonious intent was not essential. In respect to crimes that are felonious under the common law, the indictment, to be sufficient, must charge their commission feloniously or with a felonious intent, but the rule is different where the crime is purely statutory, and is defined by the statute itself. In such case the indictment is sufficient if it follows the language of the statute without the use of the term 'feloniously' or the words 'felonious intent.' "
To the same effect are Wyrick v. Commonwealth,
In Moss v. Commonwealth,
Complaint is made of the manner in which the jury was selected. Section 2264 of the Kentucky Statutes provides that on the day the jury shall be summoned to attend court, the panel shall be called, and the names of such as attend, and are not excused by the court, shall be entered of record. Those whose names are so recorded constitute the regular panel. Section 2265 of the Statutes reads:
"The clerk shall write the names of jurors entered of record on separate slips of paper, as near the same size and appearance as may be, and when a jury is wanted for the trial of a case the same shall be drawn from a box after the papers shall have been deposited therein and well mixed. The clerk shall provide and keep for that purpose a suitable box with a sliding lid."
In criminal cases the clerk is required to draw from the box twelve names who shall compose the jury to try the cause, unless some one or all of them shall be challenged, in which case the clerk shall draw from the box as many more as may be required and as often as required, until a jury be obtained or the whole panel be exhausted. Section 2266, Kentucky Statutes. If, in any criminal cause, the panel shall be exhausted by challenge, the judge may supply such jurors by drawing from the drum or wheel, or may direct the sheriff to summon for the trial of that cause any number of bystanders or persons to fill such vacancies. Section 2247, Ky. Statutes. In making up the jury in the instant case, the panel was exhausted after ten jurors had been accepted by both sides. The trial judge then *322 drew twelve names from the jury wheel and directed the sheriff to summon the jurors whose names had been drawn. Two of these jurors appeared after they had been summoned and they were called to the jury box and counsel were directed by the court to proceed to examine them for qualification for jury service. The appellant objected to this procedure and insisted that the court should wait until all of the jurors whose names had been drawn from the wheel had been summoned and had arrived in court, and that their names be placed in the box by the clerk and then drawn therefrom in the manner prescribed by section 2265 of the Statutes. The appellant's motion was overruled and it is insisted that this was error.
Appellant relies upon Williams v. Commonwealth,
Appellant's contention that the verdict is flagrantly against the evidence necessitates a brief statement of the facts. Otis Bond was in charge of a gasoline station owned by Jack Carpenter in the town of Livingston, Ky., and was on duty from 6 p. m. until 6 a. m. Bond testified that he was robbed by two men about 2:30 a. m., July 6, 1936. He was standing in the gasoline station with his back to the door when he heard the men enter. Each had a cloth or rags over his *323 face and the larger one was carrying a pistol. The one with the pistol told him he had come after his money, and after taking a wallet and two pocketbooks containing $26.93 from his person, ordered him to step into the men's restroom. The smaller of the two men carried a club but never spoke. After the robbery had been committed, they left hurriedly and Bond saw them running toward the railroad. Bond had known Willie Robertson all of his life and he testified positively that he recognized the larger of the two men as Robertson. He was of the opinion that the smaller man was Parker.
Bond immediately notified the officers and, accompanied by a deputy sheriff and one or two policemen, followed the tracks of the two robbers for a distance of about a mile and a half. On the following day they followed the tracks for a distance of about 31/2 miles until they were lost on a gravel road. Appellant lived about 41/2 miles from Livingston, and the tracks went in the direction of his home. One track was made by a large shoe, No. 10 or 11, and the smaller track was made by a No. 7 or 8 shoe. It was shown that appellant wore No. 10 shoes.
Kenneth Mullins and Ernie Ponder were indicted for the same offense. Mullins was introduced as a witness by the commonwealth and testified that he was at Ernie Ponder's home in the afternoon before the robbery was committed and saw Ernie Ponder, Willie Robertson, and Charlie Parker. About 11 o'clock that night he and Charlie Parker met Ernie Ponder and Willie Robertson on the road. Ernie Ponder had some whisky which he said he was going to deliver to some one down the branch. Parker, according to the witness, said to him: "Go with us. There is going to be a little money in it if you will go with us. We are going down to give little Jack a pull tonight" — meaning Jack Carpenter, the owner of the gasoline station. Mullins said: "No, you fellows will get caught and they got one fellow." Willie Robertson said: "You aint seared are you?" He stated that appellant and Ernie Ponder left, going in the direction of Livingston. He also stated that after the robbery appellant asked him to swear that he had slept with him the night of the robbery.
The court in the instructions told the jury that Kenneth Mullins was an accomplice and gave an instruction *324
under section 241 of the Criminal Code of Practice. It is insisted that the testimony of the accomplice is not corroborated by other evidence tending to connect the defendant with the commission of the offense, but the testimony of Otis Bond alone was amply sufficient in this respect. Shelton v. Commonwealth,
Numerous alleged errors in the admission and rejection of evidence are discussed in appellant's brief, but a discussion of them here would unduly lengthen this opinion and would serve no useful purpose. It is sufficient to say that we have carefully considered all of them and find none prejudicial.
During the trial counsel for the defendant called the commonwealth's attorney as a witness for the defendant. The commonwealth's attorney objected to testifying in the case and the court sustained his objection and refused to require him to testify. The defendant excepted, but made no showing by avowal or otherwise as to what he expected to prove by the offered witness. The court erred in refusing to require the commonwealth's attorney to testify. If he knew facts material to the defense, he should have been required to divulge them on the witness stand; but the defendant, in order to preserve his right to have the error reviewed, should have manifested in the trial court in some manner the nature of the facts he expected to prove by the witness. The rule in this jurisdiction is that, when an objection to a question propounded to a witness is sustained, an avowal as to what the witness would say if permitted to answer must be made and incorporated in the record before the action of the trial court in refusing to permit the witness *325
to answer can be reviewed by this court. Globe Indemnity Co. v. Daviess,
Appellant argues that this rule has no application here, since the witness was not sworn and the objection was to his competency and not to a particular question. This contention appears to have support in the early case of Foree v. Smith, 31 Ky. (1 Dana) 151. But the same reasons for the rule exist whether the objection is to the competency of the witness or to the relevancy or materiality of testimony called for by a particular question and the complaining party should manifest in the trial court what he expects to prove. There is no reason for any distinction. In the recent case of Clark v. Hale,
"If they desired to complain of this ruling, they should have made an avowal of the evidence which they proposed to offer."
Under section 340 of the Criminal Code of Practice a judgment of conviction will not, on appeal, be reversed for any error of law appearing on the record unless the Court of Appeals, upon consideration of the whole case, is satisfied that the substantial rights of the defendant have been prejudiced. Unless the facts which appellant expected to prove by the commonwealth's attorney were relevant and material, the refusal of the court to require him to testify was not prejudicial. The party excepting to such a refusal should, in order to avail himself of the error, state what he expected to prove by the witness and let the bill of exceptions show it. Otherwise this court cannot say that the evidence sought to be introduced was material, or that its rejection was prejudicial to the complainant.
We find no error prejudicial to appellant's substantial rights and the judgment is affirmed. *326