Crabtree v. CommonwealthCrabtree v. Commonwealth
- Reporters:
- , ,
- Before:
- Clay
Opinion op the Court by
Chief Justice Clay— Reversing.
This is an appeal from a judgment convicting appellant of the crime of maliciously shooting at his wife with the intent to kill her, but without wounding her, and fixing his punishment at one year’s imprisonment in the state reformatory.
The facts are these: Appellаnt and his wife had become estranged. She and the Children occupied the residence, while he lived in his blacksmith’s shop nеar by. It is claimed, however, that he and his wife occasiоnally visited each other. On the occasion in question, аppellant’s wife and two daughters were sleeping in the sаme bed. *66 Mrs. Crabtree first heard appellant out on the рorch. He was quarreling, and fired, one shot there. He then сame into the house on all fours. She lighted a match. Apрellant told her to put the match out or he would shoot it оut. She blew out the match, and appellant fired severаl shots. One of the shots struck the wall near by, only a few inches from her head. Appellant was pretty drunk at the time. On the othеr hand, appellant claims that when Ms wife lighted the lamp he told her to put it out, or he would shoot it out. He never shot at Ms wife, but shot at the lamp, and did not intend to shoot at or kill his wife.
’ Since at least one of the shots was fired in the direction of his wife and came near striking her, it was for the jury to say whether or not he maliciously shot at his wife with the intent to kill her.
In addition to аn instruction submitting the felony charge, the court gave a seсond instruction authorizing the jury to find appellant guilty of a misdemeanor if they believed from the evidence beyond a reasonable doubt that he shot at his wife in sudden heat and pаssion, and without malice, and not in self-defense.
Appellаnt’s chief insistence is that he was entitled to an instruction under sеction 1308, Kentucky Statutes. TMs precise question was before the court in the case of Luke & Dewey Hall v. Commonwealth, 219 Ky. 446, 293 S. W. 961, and we there held that thе holding or flourishing, or use in threatening or boisterous manner, of a deadly weapon, which is made a misdemeanor by section 1308, is included in an indictment under section 1166, Kentucky Statutes, and thе failure to instruct thereon, where the evidence authоrizes it, is prejudicial error. Appellant’s defense was that he did not shoot at or intend to kill his wife, but shot at the lamp, and firеd several shots because he was drunk. If this be true, appellant was not guilty of malicious shooting at another with intent to kill, but wаs guilty of the lesser offense denounced by section 1308. Since under the given instructions the jury could not have found appеllant guilty of a misdemeanor unless he acted in sudden heat аnd passion, as to which there was no evidence, it results that the failure to instruct under section 1308 was prejudicial error.
There being no evidence that the shooting was in sudden heаt and passion, instruction No. 2 submitting *67 that phase of the case will be omitted on another trial, and in lieu thereof the cоurt will give an instruction under section 1308, Kentucky Statutes.
Judgment reversеd, and cause remanded for a new trial consistent with this opinion.