Emerson v. Commonwealth

264 S.W. 1063, 204 Ky. 455, 1924 Ky. LEXIS 483

• Court: Court of Appeals of Kentucky
• Decided: September 23, 1924
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Sampson—

Affirming.

Appellant Charley Emerson operated a sawmill near the river in Edmonson county and lived at a boarding' house kept by Mrs. Pace. He had been there some months. Late one evening W. E. Miller, wife and' daughter, came by, and to avoid a rain storm that was coming up, entered the Pace home. It consisted of two rooms. Mrs. Pace had six children, five of whom were at home most of the time. One of them worked at the sawmill. While the Millers were in the Pace home appellant Emerson entered carrying a sack containing something. He went into the kitchen and took from the sack a jar of white whiskey, according to the witnesses for the Commonwealth. He then invited Miller and his wife and some other members of the party into the kitchen to have a drink. Miller entered and took a drink as did his wife.

After supper Emerson sweetened up some more whiskey and offered it to Miller, who drank it. These facts were proven by the three witnesses — Miller, his wife and daughter.

He was charged with having spirituous and intoxicating liquor in possession. He testified he was not guilty; that he did not have any whiskey at the place mentioned by the three witnesses for the Commonwealth and that he did not offer them a drink. In fact denied the whole evidence given by the Millers.

Appellant called several other witnesses, but none of them gave evidence concerning the transaction at the house, but their evidence was mostly directed at the character of some of the prosecuting witnesses.

For appellant was taken the depositions of Mrs. Pace and some of her children who at the time of the trial and for some time previous thereto, lived in Louisville; but these depositions were suppressed on motion of the Commonwealth because not taken in accordance with the provisions of section 153, Criminal Code, and of this appellant complains.

His first contention is that the indictment was demurrable. One of his grounds relied upon as rendering the indictment bad on demurrer is, the bad spelling or typographical errors in the accusatory part which charged him with having in possession “ spirivuous and intoxicating liquors.” "We apprehend that the misspelled word was intended to mean and to accuse appellant of having in possession spirituous and intoxicating liquors.

This is borne out by the averment in the body of the indictment which reads, “did unlawfully have and keep in his possession spirituous and intoxicating liquors.”

Bad spelling never renders a pleading bad if one of common tmderstanding may read and understand what is meant by the averment. Here we have no difficulty in understanding perfectly what the attorney for the Commonwealth intended to charge in the indictment.

Appellant also insists that the indictment is duplicitous, but this is not maintainable, for it charges but one offense, that of having spirituous and intoxicating liquors in possession. Spirituous and intoxicating liquors are one and the same thing. Neither is he correct in his insistence that the evidence which shows that appellant had in possession white whiskey proved a different offense from that charged in the indictment.

One of his chief complaints is that the court declined to allow him to read the depositions of Mrs. Pace and her children taken in Louisville on notice given to the Commonwealth.

Section 153 of the Criminal Code reads:

“If it appear by affidavit that a material witness is about to leave this state without the procurement or consent of the defendant, or is physically unable to attend for examination in court; or that his death is apprehended, or that he is a nonresident of this state, and beyond the reach of the process of the court, the court or the judge, ‘or any circuit judge’ iii vacation, may authorize the defendant to take his deposition.

“The court or judge shall, by written order, prescribe the manner of taking the deposition, whether by written interrogatories, or upon notice to the attorney for the Commonwealth; and such deposition shall only be used if the witness be dead or is absent from the state, or physically unable to attend for examination in court at the time of trial. The deposition may be taken by any officer who is authorized to take- depositions by the Civil Code: Provided, That the deposition of a nonresident shall only be taken upon interrogatories to be filed with the clerk of the court in which the trial is pending, and under the same rules that are prescribed in the Civil Code for taking depositions in civil cases; and notice of the filing of the interrogatories shall at once be given to the attorney for the Commonwealth, who may file cross-interrogatories within ten days after the notice of the filing of the interrogatories shall have been given him; and thereupon it shall be the duty of the clerk to issue commissions, with the copies of the interrogatories and cross-interrogatories, if any, annexed in the same manner and to the same persons as is prescribed by section 527 of the Civil Code, and said deposition shall be taken in all respects as is prescribed by the Civil Code in taking depositions in civil cases.”

The provisions of this section of the code are so plain that it is hardly worth while to comment thereon.

In the case of Kaelin v. Commonwealth, 84 Ky. pp. 367 and 368, we laid down the rule that inasmuch as depositions were not allowable at common law in a Commonwealth case no deposition could be read on such a trial even at the instance of the defendant except such as were taken in strict conformity to the "requirements of section 153 of the Criminal Code.

There we said:

“There is. no constitutional inhibition against the state allowing defendants in criminal oases, to take and use the depositions of witnesses in their behalf. The Constitution entitled the accused in criminal and penal cases to meet his accusers face to face, and to be confronted with the witnesses against him.

“The state, therefore, cannot authorize the taking and using of depositions of witnesses against him, but he may use the depositions of witnesses in his behalf, under any state of the case that the legislature may allow. His right, however, in this regard is controlled by the legislature.

“The legislature of this state has provided that the defendant in a criminal case may take the depositions of his witnesses to be used in his behalf, if they are about to leave the state without his procurement or consent, or are physically unable to attend for examination in court, or that their death is apprehended. As the right to take and use depositions in common law cases and in criminal eases in behalf of the defendant is a statutory right, and the legislature of the state having said in what state of case the defendant in a criminal case may take the depositions of witnesses to be used in his‘behalf, it follows that he cannot take the depositions of witnesses in any state of case not provided for by the legislature.”

Appellant does not claim in this case that he complied with section 153 or made any effort to do so. He does insist, however, that the depositions should not have been excluded except upon written motion made by the Commonwealth before the trial began and relies upon sections 586 and 587 of the Civil Code, which have no application whatever to the taking of depositions to be read upon the trial of criminal cases.

The rule is very different and the code sets out with great particularity the conditions upon which a defendant may take a deposition in a criminal case and read it as evidence upon his trial. If we were inclined to ameliorate the rule we have no power to do so.

The depositions offered by appellant in this case were not competent, and when the Commonwealth objected to their introduction the court properly sustained the objection and excluded the depositions as evidence.

There was sufficient evidence for the Commonwealth to carry the case to the jury and to sustain the verdict.

Judgment affirmed.