185 Ky. 486 | Ky. Ct. App. | 1919
Opinion op the Court by
Affirming.
The appellant, Sam Wattles, and another, Rob Ray, were jointly indicted for an assault with intent to rob, made a felony by section 1160, Kentucky Statutes. Ray pleaded guilty and the appellant was convicted and sentenced to confinement for two years in the state penitentiary, from which judgment he prosecutes this appeal. He asks a reversal because of the failure of the court to instruct the jury upon the question of assault and battery, a lesser degree of the offense charged in the indictment; and, upon the ground that the verdict is contrary to the evidence.
It was shown by the Commonwealth’s testimony, of which there is no contradiction, that near midnight on a Saturday in June, 1919, Ray and another man committed an assault upon George Ehll in his place of business at Thirteenth and Walnut streets, Louisville, with the intention of robbing him, but that after assaulting him with a pistol and a glass bottle they were frightened away without having accomplished their purpose.
2. Since two witnesses for the Commonwealth positively identified the appellant as the man who, with Ray, committed the assault upon Ehll with the intention of robbing him, while upon the other hand the appellant and Ray positively declared that appellant did not participate and was not present when the crime was committed, the issue was clearly for the jury, as it is peculiarly their provincé to pass upon the credibility of witnesses and determine the weight to be given to their conflicting statements. It is only where the verdict is palpably against the evidence that this court is authorized to set it aside, which is certainly not the case here.
Wherefore the judgment is affirmed.