198 Ky. 518 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
Tie appellant and defendant below, Eay Sparks, was convicted in tbe McCracken circuit court and punished by confinement in tlie penitentiary for one year under an indictment returned therein accusing Mm of tbe offense of wilfully and maliciously striking another with a deadly weapon with the intention to kill him but from which the one struck did not die, which is -one of the crimes denounced by section 1166 of the Kentucky Statutes. His motion for a new trial was overruled and he has appealed, insisting through his counsel as grounds for reversal (1), error of the court in refusing to grant the new trial for newly discovered evidence, and (2), error, in giving to the jury instruction number 2.
The prosecuting witness upon whom the alleged felonious assault was committed was Dave Warren, and the assault occurred one evening after dark in the railroad yards near Paducah, at which place defendant, according to Warren and other witnesses who testified for the Commonwealth, approached the witness from behind and said to him, “Dave, wait a minute,” whereupon the witness, who was then engaged as a switchman for one
The foundation for the first ground relied on for a reversal is an affidavit of an alleged newly discovered witness who detailed a conversation with the prosecuting witness, or a statement made by the latter in affiant’s presence, contradicting the testimony given on the trial by the witness and who stated, according to the affiant, that the difficulty occurred in a different manner from that testified to by him on the trial, which clearly was impeaching in its nature and for which character of newly discovered evidence a new trial will not ordinarily be granted as this court has held in an unbroken line of decisions. But, independently of that fact, there were filed, on the-motion for a new trial affidavits of other witnesses disclosing alleged misconduct on the part of the prosecuting witness by conversing with the
The court submitted to the jury, by instruction number 1, the guilt or innocence of defendant as charged in the indictment and of which no complaint is made. Instruction number 2, of which complaint is made, said:
“If the jury do not believe from the evidence to the exclusion of a reasonable doubt, that the defendant committed the offense described in instruction No. 1, and they do believe that at the time and on the occasion therein described, the defendant did not intend to kill said Dave Warren, and did not use said weapon in a manner reasonably and probably calculated to produce or bring about his death; or if they believe from the evidence that the weapon then used by the defendant, if one was so used, was not a deadly weapon, and the jury further believe from the evidence to the exclusion of every reasonable doubt that the defendant Eay Sparks in this county and within 12 months next before the finding of the indictment, to-wit, on the 26th day of September, 1922, did unlawfully assault, beat and bruise the said Dave Warren with a pistol, from which said beating, or bruising, if such there was, the said Dave Warren did not die, then the jury will find the defendant guilty of an assault and battery, an offense included in the indictment, and fix his punishment at a fine within their reasonable discretion or by imprisonment in the county jail in their reasonable discretion, or both by fine and imprisonment in their reasonable discretion, and they may say in their verdict that said fine and imprisonment or both shall be at hard labor.”
The instruction is seriously criticized by learned counsel because it is claimed that its phraseology east the burden upon the defendant to prove the intention with
But, whether so or not, the offense for which defendant was indicted and convicted was, before the enactment of section 1166 <of the statutes, but an aggravated assault punishable only as a misdemeanor. The statute carved out of the common law assault certain elements, to-wit: the wilful intent to kill, and the use of a deadly weapon, and said that when those elements existed the assault which had theretofore been only a misdemeanor should be punished as a felony. The assault committed without those elements remained a misdemeanor as at common law and likewise remained a degree of the felony which the statute created. Allison v. Commonwealth, 196 Ky. 140, and cases therein cited.
It then being the duty of the court where there is evidence to sustain it, to submit to the jury defendant’s guilt of the lesser offense, it must necessarily do so in language defining it and submitting to the jury the facts constituting it. Those facts consist of what remains of the common law misdemeanor after carving therefrom the statutory felony, which remainder is the assault without the intention to kill and without a deadly weapon. We can conceive of no other way whereby the court could properly submit the lesser offense. Neither can we subscribe to the suggestion that in doing so the burden was cast upon defendant to prove the absence of the elements necessary to constitute the felony so as to reduce the crime to a misdemeanor. Such absence is to be determined by the jury upon all the evidence in the case. Indeed, it is not uncommon for instructions in criminal prosecutions to require the jury to disbelieve, under excluding language, certain facts before convicting, and it has never been held that in so doing the burden was cast
But above and beyond what has been said, it will be noted that defendant was found guilty of the larger offense. They were instructed that if they had a reasonable doubt as to the degree of the offense, if they believed beyond a reasonable donbt that one was committed by defendant, to find him guilty of the lesser one defined in instruction number 2, and surely under that instruction the jury arrived at the conclusion that they entertained no reasonable doubt as to the defendant not having committed the lessor offense and therefore found him guilty of the greater one about which they entertained no reasonable doubt.
Our conclusion, therefore, is that the criticism of instruction number 2 is not well taken and, there being no error appearing in the record prejudicial to defendant’s substantial rights, the judgment should be and it is affirmed.