Smith v. Commonwealth

Court of Appeals of Kentucky

Smith v. Commonwealth

5 Ky. Op. 260, 1871 Ky. LEXIS 366

DecidedJanuary 11, 1871

StatusPublished

This text of 5 Ky. Op. 260 (Smith 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

Smith v. Commonwealth, 5 Ky. Op. 260, 1871 Ky. LEXIS 366 (Ky. Ct. App. 1871).

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Opinion

Opinion by

Judge PeteRs:

The defendants in the court below demurred to the indictment and their demurrer was overruled — and the propriety of that ruling presents the first question for adjudication.

By Sub-sec. c of sec. 165, Crim. Code, it is provided that [261]*261when more than one offense is charged in an indictment, except as provided for in section 126, a demurrer is proper. Two offenses are charged in this indictment, and are not any of those provided for, or allowed to be joined by the last named section of the Criminal Code. Consequently, the indictment is bad, and the demurrer should have been sustained. Wherefore the judgment is reversed and the cause remanded with directions to sustain the demurrer to the indictment and for further proceedings in conformity with this opinion.

Fisks, Duncan, for appellant.

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Opinion by

Judge PeteRs:

The defendants in the court below demurred to the indictment and their demurrer was overruled — and the propriety of that ruling presents the first question for adjudication.

By Sub-sec. c of sec. 165, Crim. Code, it is provided that [261]*261when more than one offense is charged in an indictment, except as provided for in section 126, a demurrer is proper. Two offenses are charged in this indictment, and are not any of those provided for, or allowed to be joined by the last named section of the Criminal Code. Consequently, the indictment is bad, and the demurrer should have been sustained. Wherefore the judgment is reversed and the cause remanded with directions to sustain the demurrer to the indictment and for further proceedings in conformity with this opinion.

Fisks, Duncan, for appellant.

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Bluebook (online)

5 Ky. Op. 260, 1871 Ky. LEXIS 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-commonwealth-kyctapp-1871.