Dunn v. Commonwealth , 119 Ky. 457 ( 1905 )

Opinion of the court by

CHIEF JUSTICE HOBSON

Reversing.

Appellant Dunn was convicted of the offense of housebreaking and his punishment fixed at two and a half years’ •confinement in the penitentiary. He demurred to the indictment against him. His demurrer was overruled, and the •sufficiency of the indictment is the first question to be determined on the appeal. The charge of the indictment is that the defendant Dunn “did unlawfully, willfully, maliciously, feloniously, and forcibly break open and enter into the smokehouse of J. N. Chambers for the purpose of taking, stealing and carrying away therefrom money, property and things of value, and pursuant to said breaking and entry did take, steal and carry away therefrom about ten gallons of molasses, of the value of $5,” etc. The indictment is based upon section 1162, Kentucky Statutes, 1903, which is- as follows: “If any person . . . shall feloniously •break any dwelling-house or any part thereof, or any outhouse belonging to or used with any dwelling-house, and feloniously take away anything of value, although the owner or any person may not be there, he. shall be confined in the penitentiary not less than two nor more than ten years.” It will be observed that the charge in the indictment is that the defendant feloniously broke and entered the smokehouse of J. N. Chambers, and that the statute punishes the breaking of any dwelling-house or any, out-house belonging to or used with any dwelling-house. It is not charged in the indictment that the house broken belonged to or was used with any dwelling-house. It is said that a smokehouse is used with a dwelling-house, and therefore the charge that the defendant broke the smokehouse is sufficient. But the court can not so declare as a matter of law. A smokehouse is not necessarily an out-house belonging to or Used with a dwelling house. True, it usually is used with a dwelling house, but is not always so. The smokehouse may be at one place and the dwelling-house at another. The owner, as where his dwelling-house is burned, or where he has moved to another, may still retain the smokehouse at the old site. The charge in the indictment that it was a smokehouse which was broken is not, therefore, equivalent to the words of the statute punishing! the breaking of “any out-house belonging to or used with any dwelling-house.” The indictment is therefore insufficient, and the court should have sustained the demurrer to it.

J. N. Chambers should not have been permitted to state what was told him at John Hatton’s, further1 than that they received information there that the molasses came from Dunn’s; and this only for the purpose of explaining why they went to Dunn’s.

The admissions of the defendant are always competent evidence against him, and therefore T. C. Holland was properly allowed to state what the defendant said to him about Boyd Hatton. This admission served to confirm the testimony of Boyd Hatton, and was therefore material. Where a witness is introduced to impeach another witness by evidence that hisi general moral character is bad, the opposite party may, in reply, attack the general character of the impeaching witness. 1 Greenleaf on Evidence, sec. 401; Civ. Code Prac., sec. 597.

John Patton, a member of the grand jury, might properly testify that a bottle, of molasses which he saw did or did not correspond with the molasses which Dunn made, and it .was not material where Patton saw the bottle of molasses— whether in the grand jury room or elsewhere; but before this evidence was admitted it should have been shown that the bottle contained molasses taken from the barrel in controversy.

Judgment reversed, and cause remanded for further proceedings consistent herewith.