Cox v. Commonwealth

Court of Appeals of Kentucky

Cox v. Commonwealth

8 Ky. Op. 479, 1875 Ky. LEXIS 183

DecidedJune 29, 1875

StatusPublished

This text of 8 Ky. Op. 479 (Cox v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cox v. Commonwealth, 8 Ky. Op. 479, 1875 Ky. LEXIS 183 (Ky. Ct. App. 1875).

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Opinion

Opinion by

Judge Pryor :

The defect complained of in the indictment should have been taken advantage of by demurrer. The judgment will not be arrested when a public offense is charged. To steal hogs is larceny, and the guilty party is subjected to punishment. If the offense is not stated with that particularity to make it a good indictment the accused must demur. The facts as stated, if true, make the party guilty of a criminal offense; and it is only in a case where the indictment fails to charge any offense that the motion to arrest the judgment can be sustained. The evidence conduces to show that the hogs strayed from the possession of the alleged owner. The court, in Instruction No. 5, assumes that the hogs were stolen, and the abstract proposition of law, as there presented, requires the accused to explain his possession or his guilt is established. It also directs the attention of the jury more particularly to this cir[480]*480cumstance, the fact of possession, than any other fact in the case. The instruction should not have been given, but the fact of the possession submitted to the jury, like any other fact in the case. Undue importance should not be given to any part of the testimony in a criminal prosecution.

John W. Lewis, Winfrey & Winfrey, Jamies W. Gorin, for appellant. John Rodman, for appellee.

Judgment reversed and cause remanded with directions to award the appellant a new trial.

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Opinion by

Judge Pryor :

The defect complained of in the indictment should have been taken advantage of by demurrer. The judgment will not be arrested when a public offense is charged. To steal hogs is larceny, and the guilty party is subjected to punishment. If the offense is not stated with that particularity to make it a good indictment the accused must demur. The facts as stated, if true, make the party guilty of a criminal offense; and it is only in a case where the indictment fails to charge any offense that the motion to arrest the judgment can be sustained. The evidence conduces to show that the hogs strayed from the possession of the alleged owner. The court, in Instruction No. 5, assumes that the hogs were stolen, and the abstract proposition of law, as there presented, requires the accused to explain his possession or his guilt is established. It also directs the attention of the jury more particularly to this cir[480]*480cumstance, the fact of possession, than any other fact in the case. The instruction should not have been given, but the fact of the possession submitted to the jury, like any other fact in the case. Undue importance should not be given to any part of the testimony in a criminal prosecution.

John W. Lewis, Winfrey & Winfrey, Jamies W. Gorin, for appellant. John Rodman, for appellee.

Judgment reversed and cause remanded with directions to award the appellant a new trial.

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Bluebook (online)

8 Ky. Op. 479, 1875 Ky. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-commonwealth-kyctapp-1875.