Fitzpatrick v. Commonwealth.

Opinion op the Court by

Hobson, Commissioner—.Affirming.

Clay Fitzpatrick was indicted in the Magoffin circuit court for the malicious shooting and wounding of Alex Bailey with intent to kill him. On the trial of the case he was found guilty and his punishment fixed at five years’ imprisonment. He appeals.

Two grounds of reversal are relied on: (1) The verdict is flagrantly against the evidence. (2) The court did not properly instruct the jury.

1. Fitzpatrick was employed as a night watchman at a lumber mill at Royalton in Magoffin county. Alex Bailey was the operator of a taxicab there. On July…