Cosby v. Commonwealth

115 Ky. 221 | Ky. Ct. App. | 1903

Opinion of the court by

JUDGE SETTLE

Reversing.

The appellant, George Oosby, was indicted in the Nelson circuit court for the crime of unlawfully and maliciously striking and wounding one ffm. Gilky with a club and rack, deadly weapons, with the intent to kill him. Upon- the trial appellant was found guilty by the verdict of the jury, and his punishment fixed at confinement in the penitentiary for a term of three years. A new trial was refused Mm; hence this appeal.

The lower court gave five instructions, four of which, viz., 1, 2, 3, and 5, we do not hesitate to approve, as they fairly and explicitly set forth, as far as they go, the law of the case; but we are unable to approve instruction No. 4 given by the court, which As ias follows: “By the words a deadly Weapon/' as used in these instructions, is meant a weapon With wMdh death might he produced in the manner in which defendant used the club and rock, or either, on the occasion mentioned in the indictment (if 'he used club and rock, or either, on said occasion.)” It was, of course, necessary to 3ubmit to the jury, as was done in instructions 1 and 2, the question of whether the instruments used by appellant in the striking and wounding of Gilky were or not deadly weapons, but it was also necessary to tell the jury in those instructions, or ia .separate one, what may be considered a deadly weapon in the meaning of the law. As said by this court in Commonwealth v. Duncan, 91 Ky., 595, 13 R., 162, 16 S. W., 531: “The statute does not say what shall constitute a deadly weapon. It merely punishes for a willful and malicious wounding with one. If one man maliciously wounds another with a rock, with which he might have killed him, there exists no reason why the same punishment should not he meted out to him as if he had done it with a shotgun; and undoubtedly the Legislature, in enacting this statute, so intended. Whether in this instance the rock was large enough to produce death, and therefore a deadly weapon, should have been left to the jury, and the court erred in taking the question from them.” This court has never adopted a form .of instruction defining the meaning of the words “deadly weapon,” and an examination of the opinion in the case supra will show that it does not undertake to say what will constitute a deadly weapon within the meaning of the statute, but simply declares that “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.” We think the court might have gone further, and said that the physical strength of the person using the instrument or weapon is also to be considered by the jury in determining whether it is a deadly weapon. A deadly weapon is “one dangerous to life.” A rock or club is not necessarily a deadly weapon, but may be made so in the hands of a malicious or infuriated person of ordinary strength, if used in an attack upon another with intent to take his life. It will be observed that instruction No. 4 told the jury that “any weapon” is deadly which might produce death, if used in the manner in which the club and rock were used by appellant. A bar of iron or a sledge hammer might easily produce death, if used in the maimer in which the club and rock seem to have been used by appellant; but the question to be determined by 'the jury was not whether any weapon (such as a bar of iron or other heavy instrument) might produce death if used as the club and rock were used, but whether the latter, considering their character and the manner of their use, might have produced death. We are of the opinion that the lower court should have given the instruction on this point as follows: “If the jury believe from the evidence beyond a reasonable doubt that the club and rock, or either, with which the defendant struck and wounded Gilky (if he did so strike and wound him with a club and rock, or either), were such, instruments as were reasonably calculated to produce death, when used by a. person of defendant®’ physical strength and in the manner in which they, or either of them, were used by him on the occasion mentioned in the indictment, they will, in that event, bei authorized to find that such club and rock, or either, are deadly weapons within the meaning of the law.”

For the error committed by the lower court in the matter of giving instruction No. 4, the judgment is reversed, and the cause remanded, with directions to that court to set aside the verdict of the jury and the judgment and sentence entered thereon, and to grant appellant a new trial in conformity to the opinion herein.

Whole court sitting.