#### Commonwealth v. Brown Forman Distillers Corporation.

May 28, 1948.

*598A. E. Punk, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellant.

*599Ogden, Tarrant, Galphin & Street and Marshall Dawson for appellee.

Opinion op the Court by

Chiep Justice Sims

Reversing.

The appellee, Brown Forman Distillers Corporation, was indicted by the grand jury of the Woodford Circuit Court for the offense of depositing substances in public waters injurious to aquatic life, as denounced in KRS 150.460. The punishment for this offense is fixed in KRS 150.990(4) (a), at a fine of not less than $100 nor more than $1000, or imprisonment for not more than six months, or both such fine and imprisonment.

Appellee was indicted as a Kentucky corporation when in fact it was incorporated und.er the laws of Delaware. Upon the indictment being called for trial the Commonwealth moved to proceed against the Company in its true name, “Brown Forman Distillers Corporation, a corporation organized and existing under the laws of the State of Delaware, and doing business in Woodford County, Kentucky,” as provided in the Criminal Code of Practice, sec. 125. The Company objected to this motion and filed motion to quash, a special demurrer and a general demurrer.

The court overruled the Commonwealth’s motion to correct the mistake in the indictment relative to the Company’s name and insert therein its true name, but sustained the Company’s general demurrer to the indictment and dismissed same. The Commonwealth prayed an appeal to this court which was granted by the circuit court, and this appeal is prosecuted by the Commonwealth under sec. 337 of the Criminal Code of Practice to obtain a certification of the law, as there are other similar indictments pending in the Woodford Circuit Court. Commonwealth v. Williams, 230 Ky. 71, 18 S. W. 2d 881.

The rule appears to be that where the indictment makes a mistake as to the name of the accused but leaves no doubt, in the mind as to whom the grand jury intended to charge with the crime, and the accused has not been misled by the mistake, then the indictment may be corrected under sec. 125 of the Criminal Code of Practice by the insertion of the correct name of the accused. *600But where it is not certain and clear as to whom the grand jury intended to indict and a change in the name or initials of the person mentioned in the indictment might result in the indictment charging a person other than the one the grand jury intended to charge with the crime, or might mislead the accused or not so identify him as to make available to him a plea of former conviction or acquittal, should he thereafter have occasion to make use of it, then no change may be made under see. 125 in the name or initials of the person accused in the indictment. Lassiter v. Commonwealth, 249 Ky. 352, 60 S. W. 2d 937; O’Brien v. Commonwealth, 260 Ky. 572, 86 S. W. 2d 309; Amburgy v. Commonwealth, 300 Ky. 261, 188 S. W. 2d 437.

In the instant case it is clear that the grand jury intended to indict the Brown Fox-man Distillers Corporation, a corporatioxx organized axxd existing uxxder the laws of Delaware and doixxg busixxess ixx Woodford Couxxty, Kexxtucky. Whexx the ixxdictment described the Compaxxy as a Kentucky corporatioxx a mistake was made ixx its name just the same as if the ixxdictxnexxt had been returned against axx ixxdividual, “John Doe,” when the true xxame of the person the graxxd jury intexxded to indict was “John W. Doe.” Where a mistake is made in the xxaxxxe of a corporation, it may be corrected under sec. 125 of the Criminal Code of Practice the same as if a xnistake had been xxxade ixx the name of axx ixxdividual. International Harvester Co. v. Commonwealth, 124 Ky. 543, 99 S. W. 637, 30 Ky. Law Rep. 716.

Appellee argues that a corporation’s sole identity is its xxame axxd if it be indicted uxxder the wrong xxaxxxe, there is no misnomer which can be corrected uxxder sec. 125 but that a separate hxxd distinct entity has been charged with the crime, citing such foreigxx cases as Surace v. Pio, 112 Me. 496, 92 A. 621; Fitzpatrick v. Pitcairn, 371 Ill. 203, 20 N. E. 2d 280; Culpepper v. State, 173 Ga. 799, 161 S. E. 623, 79 A. L. R. 217. As we read these cases they appear to hold that while a misnomer may be corrected in an indictment or a complaint, it is xxot permissible to change the idexxtity of the party charged and to substitute for him a distinct axxd separate exxtity. With this we agree. However, our General Assembly has provided that the word “person” includes a corporation. KRS 446.010(21) and Civil Code of *601Practice sec. 732(5). In view of such enactments by tbe General Assembly, the name of a corporation may be corrected in an indictment under sec. 125 of tbe Criminal Code of Practice tbe same as such correction under that section may be made in tbe name of an individual.

We doubt if this court would have ruled as did tbe Georgia Supreme Court in tbe Culpepper case, 173 Ga. 799, 161 S. E. 623, 79 A. L. R. 217, that an indictment is fatally defective where in one part thereof Ed. C. Culpepper’s name was written “Ed. C. McGruder, ” tbe latter being tbe prosecuting witness. In Amburgey v. Commonwealth 300 Ky. 261, 188 S. W. 2d 437, tbe indictment in one place inadvertently referred .to “Henry Amburgy” (tbe accused) as “Henry Williams” (tbe person Amburgy killed), and we there held that under sec. 125 of tbe Criminal Code of Practice tbe court correctly allowed a correction to be made in tbe indictment by inserting “Henry Williams” in lieu of “Henry Amburgy” during tbe impanelling of tbe jury.

Tbe Commonwealth asks us to pass on tbe sufficiency of tbe indictment, while tbe appellee insists that question is not before us and we are confronted with tbe task only of determining whether tbe correction in tbe name of the accused may be made in tbe indictment under sec. 125. Evidently, appellee loses sight of tbe fact that tbe trial court sustained a general demurrer to tbe indictment and dismissed it. When tbe Commonwealth appealed from that order it brought here for review tbe act of tbe trial court which held tbe indictment was bad. It is true tbe learned trial judge seems to have based bis ruling that tbe indictment was bad because tbe true name of tbe Company did not appear therein. However, we are not limited to tbe reason given by tbe trial court in sustaining tbe demurrer to tbe indictment. Tbe indictment as a whole is presented to us and our task is to determine not only whether tbe indictment may be corrected under sec. 125 of tbe Criminal Code of Practice, but whether tbe trial court erred in sustaining a general demurrer thereto.

It must be admitted that the indictment is not skillfully drawn, but it plainly charges tbe Company with intentionally running a substance, commonly known as “distillery slop” which is injurious to aquatic life, *602into the public waters of Glenn’s Creek in Woodford County, Kentucky, on the 24th day of Oct. 1947. While the indictment refers to another date, Nov. 3, 1947, it is evident that it does not charge the Company with thus polluting the waters of Glenn’s Creek on that date, but that the offense was committed within twelve months before Nov. 3, 1947, which was the date the indictment was returned. Criminal Code of Practice, sec. 129; Commonwealth v. Miller, 79 Ky. 451, 3 Ky. Law Rep. 231; Posey v. Commonwealth, 194 Ky. 483, 240 S. W. 91; Maxey v. Commonwealth, 255 Ky. 330, 74 S. W. 2d 336.

Being. of the opinion that the circuit court erred in refusing to permit the Commonwealth to correct the name of the Company in the indictment and in sustaining the general demurrer thereto and in dismissing the indictment, the judgment is reversed with directions that the court permit the Commonwealth to correct the name of the appellee by writing in the indictment that it is a corporation of the State of Delaware, doing business in Woodford County, Kentucky, and that the general demurrer to the indictment be overruled.

This is certified as the law of the case.