Downes v. Commonwealth

Court of Appeals of Kentucky

Downes v. Commonwealth

9 Ky. Op. 112, 1876 Ky. LEXIS 352

DecidedSeptember 7, 1876

StatusPublished

This text of 9 Ky. Op. 112 (Downes 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

Downes v. Commonwealth, 9 Ky. Op. 112, 1876 Ky. LEXIS 352 (Ky. Ct. App. 1876).

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Opinion

Opinion by

Judge Cofer :

The indictment does not state facts constituting a public offense. It is charged that the defendants unlawfully assembled and tumultuously disturbed the public peace, not having any avowed, ostensible, legal or constitutional object, and were assembled under such circumstances and deported themselves in such manner as to produce danger to the public peace and tranquillity, and that their acts and deportment excited terror, alarm and consternation in the neighborhood.

It is necessary to state in an indictment the acts constituting the offense. Sec. 121, Crim. Code. Whether the defendants unlawfully assembled must depend upon the question whether they assembled with the intention to assist each other in the execution of some unlawful enterprise; and in order that the court may judge whether there was an unlawful assembly it was necessary to allege that they assembled' with the intention to aid each other; and the thing intended to be done should have been stated, that the court might judge whether it was unlawful. Several persons may lawfully assemble to aid each other unless the enterprise be an unlawful one; [113]*113and unless it be stated what the enterprise was, the court cannot know that it was unlawful.

J. A. Brents, for appellants. Moss, for appellee.

That the defendants assembled under such circumstances, and deported themselves in such manner as to endanger the public peace, does not show that their assembly was unlawful. Nor does the fact that their acts excited terror and alarm necessarily show an infraction of law, much less an unlawful assembly. Persons may and do often assemble under circumstances endangering the public peace, but they are not therefore necessarily guilty of the offense of an unlawful assembly.

The indictment failing to state that the defendants assembled for an unlawful purpose and what that purpose was, is not good as an indictment for 'an unlawful assembly; and failing to state the acts done which caused terror and alarm, it is not good as an indictment for a breach of the public peace.

Judgment reversed, and cause remanded with directions to arrest the judgment.

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Opinion by

Judge Cofer :

The indictment does not state facts constituting a public offense. It is charged that the defendants unlawfully assembled and tumultuously disturbed the public peace, not having any avowed, ostensible, legal or constitutional object, and were assembled under such circumstances and deported themselves in such manner as to produce danger to the public peace and tranquillity, and that their acts and deportment excited terror, alarm and consternation in the neighborhood.

It is necessary to state in an indictment the acts constituting the offense. Sec. 121, Crim. Code. Whether the defendants unlawfully assembled must depend upon the question whether they assembled with the intention to assist each other in the execution of some unlawful enterprise; and in order that the court may judge whether there was an unlawful assembly it was necessary to allege that they assembled' with the intention to aid each other; and the thing intended to be done should have been stated, that the court might judge whether it was unlawful. Several persons may lawfully assemble to aid each other unless the enterprise be an unlawful one; [113]*113and unless it be stated what the enterprise was, the court cannot know that it was unlawful.

J. A. Brents, for appellants. Moss, for appellee.

That the defendants assembled under such circumstances, and deported themselves in such manner as to endanger the public peace, does not show that their assembly was unlawful. Nor does the fact that their acts excited terror and alarm necessarily show an infraction of law, much less an unlawful assembly. Persons may and do often assemble under circumstances endangering the public peace, but they are not therefore necessarily guilty of the offense of an unlawful assembly.

The indictment failing to state that the defendants assembled for an unlawful purpose and what that purpose was, is not good as an indictment for 'an unlawful assembly; and failing to state the acts done which caused terror and alarm, it is not good as an indictment for a breach of the public peace.

Judgment reversed, and cause remanded with directions to arrest the judgment.

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Bluebook (online)

9 Ky. Op. 112, 1876 Ky. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/downes-v-commonwealth-kyctapp-1876.