91 Ky. 592 | Ky. Ct. App. | 1891
delivered the opinion oe the court.
The appellee, Thomas Duncan, threw a rock, a size larger than a man’s fist, at Thomas Scruggs throúgh the open door of the latter’s house, knocking him senseless. It occurred at night. They were about twelve or 'fourteen feet apart at the time, Scruggs being within his house. The attack was evidently without legal excuse. The appellee was indicted for a malicious wounding under section 2, article 6, chapter 29, of the General Statutes, which provides: ‘‘If any person shall willfully and maliciously shoot at and wound another with an intention to kill him, so that he does not die' thereby, with a gun or other instrument loaded with a leaden bullet or other substance, or shall willfully and maliciously cut, strike or stab another with a knife, sword or other deadly weapon, with intention to kill, if the person so stabbed, cut or bruised die not thereby, * * * he shall be confined in the penitentiary not less than one nor more than five years.”
At the close of the testimony the court instructed the jury that they could not convict the accused of the charge named in the indictment, but gave instructions which led to his conviction for an ordinary assault and battery.
Under sections 262-3 of our Criminal Code the last named offense is to be deemed a degree of the one named in the indictment, and a defendant may be found guilty of any offense thus included in the charge named, and not higher in degree. The judgment is, therefore, a bar to the accused being again tried, as he has been in jeopardy, and this appeal
It is said, and we presume it to be the fact, that the court so instructed the jury upon the ground that the rock was not a deadly weapon. The statute above cited is not confined to the case of weapons which can only be used for shooting, cutting, thrusting or stabbing, as is section 1, article 17, chapter 29, of the General Statutes, where the shooting or cutting of a person in a sudden affray, or in sudden heat and passion, not resulting in death, is denounced, and which was under consideration in the case of Commonwealth v. Hawkins, 11 Bush, 603; but it provides : “If any person * * shall willfully and maliciously * * strike * * another with a * * deadly weapon, with intention to kill,” &c.
What is a deadly weapon within the meaning of a statute like this one must often depend upon the character of the instrument and the manner of its use, and be a question for the jury to determine. In applying the statute against carrying concealed deadly weapons this rule can not, of course, be followed ; but under a statute punishing one for an injury with a deadly weapon, not only the character of the weapon used, but the manner of its use, is to be considered, and the question whether it be a deadly weapon must often be left to the jury. Of course it may be of such a nature as, for instance, a hatchet, that its deadly character may be beyond question. If so, testimony would, of course, be inadmissible, because it would be useless, and the law does not admit of idle things.
This opinion is ordered to be certified to the lower court as the law of the case.