11 Ky. Op. 969 | Ky. Ct. App. | 1883
Opinion by
This record presents two questions. First, Should the motion in arrest of judgment have been sustained? Second, Did the court err in instructing the jury? In regard to the first, Criminal Code (1876), § 276, expressly provides that “The only ground upon which •a judgment shall be arrested, is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.” The indictment in this case accused the defendant “of the crime of malicious shooting and wounding,” and proceeds with a statement of the acts constituting the offense of malicious shooting and wounding with an intention to kill. The facts stated clearly constitute that offense.
Although the omission from the accusatory part of the indict
If the indictment had been demurrable for the defect in the accusatory part of it, still as the indictment shows that the defendant had committed a public offense within the jurisdiction of the court, and the record demonstrates that he was convicted of the offense stated in the' indictment, the court did not err in refusing to arrest the judgment. ■ Tully v. Commonwealth, 11 Bush (Ky.) 154, Criminal Code, § 276.
The nature and cause of the offense were fully set forth in the indictment, and a person of ordinary understanding could easily have known what was intended. We do not think the defendant was or could have been misled.
As to the alleged error in instructing the jury, there is no bill of exceptions and the record does not contain all the instructions given by the court to the jury, and according to Criminal Code, § 341, this court has no power to reverse the judgment for an error of the lower court in instructing the jury, in the absence of any of the instructions given, unless those contained in the record could not under any circumstances and with any modification or explanation be the law applicable to the case.
The single instruction before us is not in itself erroneous, unless no other instruction was given. It tells the jury, in substance, and very accurately, that if the defendant wilfully and maliciously shot and wounded J. C. Mitchell, with a pistol and with the intention of killing him, without killing him, they should find him guilty of a felony.
Other instructions were given, but as they are not contained in the record we can not know what they are, but the presumption is very strong that they contained the law of self-defense and sudden heat and passion, with directions to the jury as to their duty relative to doubt as to the degree of the offense.
AYherefore the judgment is affirmed.