Maddox v. Commonwealth

Court of Appeals of Kentucky (pre-1976)

Maddox v. Commonwealth

298 S.W. 688, 221 Ky. 257, 1927 Ky. LEXIS 699

CourtCourt of Appeals of Kentucky (pre-1976)

DecidedOctober 7, 1927

StatusPublished

Cited by1 cases

This text of 298 S.W. 688 (Maddox v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky (pre-1976) primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maddox v. Commonwealth, 298 S.W. 688, 221 Ky. 257, 1927 Ky. LEXIS 699 (Ky. 1927).

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Opinion

Opinion of the Court by

Judge Dietzman

Reversing.

The appellant was convicted of the offense of keeping a disorderly house, and has appealed. She was indicted in September, 1925, and was tried on February 4, 1926. The bill of evidence is made up in the narrative form, and the only reference we have been-able to find therein as to the time when the appellant is claimed to have maintained a disorderly house appears in the testimony of James Allen. We quote from the bill of exceptions:

‘ ‘ He (Allen) knew and had known the defendant for some time; that she lived between Twenty-Ninth *258 and Thirtieth streets on Carter avenue in the city of Ashland, Boyd county, Ky., and that he lived IV2 blocks from her on the same avenue in said city; that the defendant had lived in the premises described in the indictment for several months. ’ ’

This statement is quite as consistent with the fact that the appellant had lived in the house which she is accused of maintaining as disorderly only since the finding of the indictment which occurred five months previous to the date of the trial as it is with the fact that she had lived there prior to the finding of that indictment. In submitting this case to the jury, the court by its instructions omitted all reference as to the time within which the jury must find the offense to have been committed in order to convict the appellant. Under the instructions, the jury was at liberty to convict her for what she did after the finding of the indictment as well as what she did at'any time before, whether within 12 months or not. It is obvious that in this state of the record the instruction was fatally defective, and the evidence, because of its not fixing the time, insufficient to sustain the verdict. Patrick v. Commonwealth, 196 Ky. 18, 244 S. W. 72; Bostick v. Commonwealth, 206 Ky. 633, 268 S. W. 289; Turner and Standafer v. Commonwealth, 211 Ky. 553, 277 S. W. 842.

Judgment reversed, with instructions to grant the appellant a new trial herein. - ■

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Opinion of the Court by

Judge Dietzman

Reversing.

The appellant was convicted of the offense of keeping a disorderly house, and has appealed. She was indicted in September, 1925, and was tried on February 4, 1926. The bill of evidence is made up in the narrative form, and the only reference we have been-able to find therein as to the time when the appellant is claimed to have maintained a disorderly house appears in the testimony of James Allen. We quote from the bill of exceptions:

‘ ‘ He (Allen) knew and had known the defendant for some time; that she lived between Twenty-Ninth *258 and Thirtieth streets on Carter avenue in the city of Ashland, Boyd county, Ky., and that he lived IV2 blocks from her on the same avenue in said city; that the defendant had lived in the premises described in the indictment for several months. ’ ’

This statement is quite as consistent with the fact that the appellant had lived in the house which she is accused of maintaining as disorderly only since the finding of the indictment which occurred five months previous to the date of the trial as it is with the fact that she had lived there prior to the finding of that indictment. In submitting this case to the jury, the court by its instructions omitted all reference as to the time within which the jury must find the offense to have been committed in order to convict the appellant. Under the instructions, the jury was at liberty to convict her for what she did after the finding of the indictment as well as what she did at'any time before, whether within 12 months or not. It is obvious that in this state of the record the instruction was fatally defective, and the evidence, because of its not fixing the time, insufficient to sustain the verdict. Patrick v. Commonwealth, 196 Ky. 18, 244 S. W. 72; Bostick v. Commonwealth, 206 Ky. 633, 268 S. W. 289; Turner and Standafer v. Commonwealth, 211 Ky. 553, 277 S. W. 842.

Judgment reversed, with instructions to grant the appellant a new trial herein. - ■

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298 S.W. 688, 221 Ky. 257, 1927 Ky. LEXIS 699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maddox-v-commonwealth-kyctapphigh-1927.

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