4 S.W.2d 711 | Ky. Ct. App. | 1928
Reversing.
The appellant was convicted, under section 1166, Kentucky Statutes, of the offense of willfully and maliciously striking and wounding his wife with intent to kill her, and his punishment was fixed at two years' imprisonment in the penitentiary.
It is insisted that the evidence was insufficient, and that the court erred in not giving the whole law of the case.
Appellant's wife testified that appellant came in late one night for supper. Supper was not ready, and he became quarrelsome. He then picked up a baseball bat, and hit her on the head, and the blood ran all over her. She did not secure the services of a physician to look after the wound, and the wound did not leave a sear. Boone Phillips, a neighbor, heard Mrs. Marks' screaming, and went to her home. When he arrived, her head was bleeding, and he saw the baseball bat with which she said he had struck her. There can be no doubt that this evidence was sufficient, not only to take the case to the jury, but to sustain the verdict.
The contention that the court did not give all the law of the case presents a more serious question. The court did not err in failing to instruct under section 1242, Kentucky Statutes, as we have frequently ruled that striking with a club is not included in, and punishable under, that section. Ward v. Commonwealth,
Judgment reversed, and cause remanded for a new trial consistent with this opinion.
