129 Ky. 716 | Ky. Ct. App. | 1908
Opinion of the Court by
Reversing.
Appellants were indicted, convicted, and sentenced, to serve two years in the penitentiary for the violation of section 1163 of the Kentucky Statutes of 1903, which is as follows: “Any person who shall forcibly break and enter into any railroad depot, car factory,, station house, railroad car, or express car, with intent to kill or rob any person therein, or to steal property, money, or anything of value therefrom,.
The Attorney General cites the cases of Darter v. Commonwealth, 5 S. W. 48, 9 Ky. Law Rep. 277, and Cunningham v. Commonwealth, 13 S. W. 104, 11 Ky. Law Rep. 783, as sustaining the action of the lower court. The question under consideration in the ease at bar was not considered in the cases referred to. There are some careless expressions in those opinions that seem to sustain appellee’s contention.
On another trial, if there is a failure of proof as to-the entering of the ear, the court will instruct the jury for the offense of trespass as defined in section 1256 of the Kentucky Statutes of 1903. See section 264 of the Criminal Code of Practice and the case of Commonwealth v. Willie Wells, 33 Ky. Law Rep. 964, 112 S. W. 568 (the opinion in which was delivered the 23d day of September, 1908).
For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith.