183 S.W.2d 486 | Ky. Ct. App. | 1944
Reversing.
Appellant was convicted of the offense denounced by
Appellant was put to trial in December of 1943, but the jury disagreed. He went to trial thereafter, the jury finding him guilty and fixing his punishment at confinement for a period of two years. In his motion for a new trial he set up five grounds in support, but on appeal abandons all save two: Errors of the Court (1) in failing to give instructions embodying the whole law and in giving erroneous instruction; (2) in not sustaining motion for new trial on ground of evidence newly discovered.
Briefly the testimony shows that appellant lived on one side of Carr's Fork, and Goodloe Combs, prosecuting witness, lived just across the stream. Goodloe testified that about 2:00 or 2:30 p. m., August 28, 1943, while he was plowing on a part of his farm, about 400 yards from appellant's home, some shots were fired, as he conceived, from the neighborhood of appellant's home. Goodloe stopped his work and came down the hill toward a gate; the shooting continued, and he saw appellant on the porch of his home, and he fired the rifle twice. Some of the shots came near him, one or two "raising the dust" near his feet; none of the shots struck him. His testimony was corroborated by several witnesses.
Appellant testified that he was not at home at the time fixed by Goodloe when the shooting occurred; that at no time during the day did he see Goodloe, or fire the rifle. He said that his brother Oscar was, later in the afternoon, shooting around the house. He said that after the shooting he was on the front porch. Oscar testified that he was using the 22 rifle shooting at bull bats, and that while he was shooting appellant came up and asked what he was doing; he admitted that he did not know the *483 precise time, but it was "along in the evening, about 3 or 3:30." There was some corroborative testimony.
In his instruction the court told the jury that, if they believed beyond a reasonable doubt that appellant at the time and place "did unlawfully and feloniously shoot at Goodloe Combs with a gun * * * intending to kill him, but from which he did not die, and said shots did not hit him, the jury should find him guilty." This instruction is copied from Stanley's Instructions, sec. 809, and noted as being taken from Dowell. v. Com., 108 S.W. 847, 32 Ky. Law Rep. 1344. There is, however, this difference: In the Dowell case the court used the words "wilfully and maliciously," together with "unlawfully and feloniously," the former words, perhaps, omitted from the instruction by oversight. The instruction here also used the words "intending to kill him," as used in the Stanley quotation. The Dowell case was written long prior to Keys v. Com.,
Appellant relies on the recent case, Pack v. Com.,
In the later case of Smith v. Com.,
Counsel for Commonwealth makes vigorous argument to the effect that the word "feloniously," used in the instruction, was sufficient, citing cases where we had held the word to embrace the idea that the act charged was maliciously done. While the words have been loosely and interchangeably used in various opinions, the word "feloniously" does not necessarily embrace the idea of malice aforethought. "Feloniously" means proceeding from an evil heart or purpose, done with a deliberate intention of committing a crime, Taylor v. Com.,
The contention of appellant that he was entitled to an instruction on the offense of wanton, careless or reckless handling of a firearm, a misdemeanor, is without merit since there were no facts upon which to predicate such an instruction. There is no necessity for discussing the alleged error in the court's refusal to grant a new trial upon the ground of newly discovered evidence, further than to say that the affidavits in support were technically deficient, and the evidence found after *485 trial was merely of cumulative nature. The same situation will not likely arise on another trial.
Judgment reversed with directions to grant appellant a new trial consistent herewith.