Commonwealth v. White
109 S.W. 324
33 Ky.L.Rptr. 70
Court of Appeals of Kentucky.
April 16, 1908.
ACTION: Affirmed.

Appeal from Circuit Court, Clay County. "Not to be officially reported."
Larkin White was indicted for assault with a deadly weapon.
From a ruling of the trial court holding the indictment insufficient, the commonwealth appeals.

The indictment in this case was drawn in the following language: "The grand jury of Clay county, in the name and by the authority of the commonwealth of Kentucky, accuse Larkin White of the offense of willfully assaulting another person with a deadly weapon, committed in like manner and form as follows, viz.: The said Larkin White did on the 9th day of May, 1907, in the county, circuit, and state aforesaid, and in less than one year next before the finding of the indictment herein, unlawfully and willfully point a deadly weapon at W. O. B. Lipps, and use same in a threatening and boisterous manner, and thereby greatly interrupting and disturbing him, and putting him in fear, against the peace and dignity of the commonwealth of Kentucky." It was framed under section 1308, Ky. St. 1903, which provides that "if any person shall draw a deadly weapon, or shall point any deadly weapon at another," etc.

The question for decision is as to the sufficiency of the indictment. The rule is that, "where the words of the statute are descriptive of the offense, the indictment will be sufficient if it shall follow the language and expressly charge the exact offense of the defendant." But this rule applies only to offenses which are complete in themselves, when the acts set out in the statute have been done or performed. We think this indictment is defective, in that it fails to describe the instrument claimed to be a deadly weapon. It might have been a pistol. It might have been a dirk, a sword, or a heavy, murderous bludgeon. Under this indictment the defendant would not be apprised of the circumstances that he would be required to meet and rebut at the trial. It is not direct and certain, under section 124 of the Criminal Code of Practice.

It is claimed in the case at bar that the deadly weapon used by the accused was a 45-caliber pistol. Such an instrument is a deadly weapon. But the defendant should have been informed of the fact that the commonwealth would attempt to prove that he used such weapon. The statement in the indictment that the defendant "did unlawfully and willfully point a deadly weapon at W. O. B. Lipps" is a conclusion of the pleader, in so far as it refers to the character of the weapon. The weapon may be deadly or not, according to its nature or to the manner of its use. The weapon should be so described in the indictment that the fact that it is a deadly weapon as used must appear from the language of the charge. Whether a particular weapon, such as a club or stone, is deadly, would be a question of fact to be determined by the jury, and the fact whether it is such is to be submitted under appropriate instructions; but where the weapon charged is a pistol, a gun, a sword, or bowie knife, upon proof of that fact, under an appropriate charge contained in the indictment, a prima facie case would be made out for the prosecution. But the defendant is not required to introduce any evidence until he is first charged in appropriate language with having drawn or pointed a weapon which from its description or manner of use would be a deadly weapon. Nor is the prosecution allowed to supplement a defective charge in the indictment by sufficient proof. In this case the evidence for the state that the accused pointed a 45-caliber pistol at the prosecuting witness did not help out the case for the state. The proof and allegations must substantially agree. The failure of allegation is as fatal as the failure of proof. The court was not at liberty upon such a record to submit the case to the jury, but properly instructed them peremptorily to find for the defendant; the commonwealth not offering to recommit the case to the grand jury in order that a sufficient indictment might be framed.

Nor is the indictment good as charging a breach of the peace, although in the descriptive part of the indictment it is stated that the defendant "used same in a threatening and boisterous manner." The descriptive part of the indictment is always construed with relation to the charging part. The defendant in this case was charged with the statutory offense of drawing a deadly weapon upon another, or pointing a deadly weapon at another, or using, holding, or flourishing a deadly weapon in a threatening or boisterous manner. It is not clear, from the language used in the indictment, which of the features of the statute was intended to be covered by it. There is no provision in the statutes against "willfully assaulting another person with a deadly weapon." Still we are inclined to construe the language in the accusative part of this indictment, where the word "assaulting" is used, as being the equivalent of drawing a deadly weapon upon another, or pointing it at him. Under this construction, which is as favorable to the commonwealth as the language would seem to admit, the clause in the descriptive part that the weapon was used in a threatening and boisterous manner was a part of the description of the specific offense charged above, and which the defendant was notified that he would be called upon to answer.

The judgment of the circuit court, being in conformity with this opinion, is affirmed.

Ky.App. 1908.
109 S.W. 324, 33 Ky.L.Rptr. 70


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