Commonwealth v. Vineyard

82 S.W. 289, 118 Ky. 645, 1904 Ky. LEXIS 90

• Court: Court of Appeals of Kentucky
• Decided: September 23, 1904
• Status: Published

Opinion

Opinion of the court by

JUDGE PAYNTER.

The indictment charged that the defendants stole certain manilla ropes from the Colnmhus Stave Company, which was a duly incorporated company. The evidence introduced by the Commonwealth tended to show that the ropes were stolen from ,the Columbus Stave Company, and that they belonged to that company, and that it was incorporated. The Commonwealth did not introduce the records to show that it was a duly incorporated company. For this reason the court gave the jury an instruction to return a verdict for the defendants. The case was brought here to review the action of the court.

Section 128, Cr. Code Prac., reads as follows: “If an offense involve the commission of, or an attempt to commit an injury to person or property, or the taking of property, and be described in other respects with sufficient certainty to identify the act, an erroneous allegation as to the person injured or attempted to be injured, or as to the owner of the property taken or injured or attempted to be injured, is not material.” The indictment was sufficiently certain without an averment that the Columbus Stave Company was an incorporated company. Therefore it was unnecessary to aver that it was an incorporated company. The offense could have been committed whether the company was inuorporated or not. Although the indictment averred that it was a corporation, had the evidence upon trial shown that it was not a corporation, still a case would have been made out against the defendants. It was to meet this and similar cases that section 128 was enacted.

In our opinion, the court erred in giving the peremptory instruction. The case is not reversed, because there can not be another trial.