Erwin v. Commonwealth
Court of Appeals of Kentucky
Cash 70 —INDICTMENT— APPEAL FROM DAVEISS CIRCUIT COURT. 1. The venue not having been proved the case should be reversed on that ground alone. 2. The question as to whether the wooden stick used by appellant was a deadly weapon should have been submitted to the jury.
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Cash 70 —INDICTMENT— APPEAL FROM DAVEISS CIRCUIT COURT. 1. The venue not having been proved the case should be reversed on that ground alone. 2. The question as to whether the wooden stick used by appellant was a deadly weapon should have been submitted to the jury. (Commonwealth v. Duncan, .91 Ky., 592.) 8. If the defendant was not guilty of wilfully and maliciously striking and wounding with a club, but was guilty of striking in sudden heat and passion with a club, then he was guilty of a mere assault and battery and nothing else, and the com-t should have so instructed the jury-
1Opinion of the Court
JUDGE HAZELRIGG
delivered the opinion of the court.
The appellant was convicted, and Ms punishment *423fixed at, a fine of three hundred and seventy-five dollars, and imprisonment in the county jail for the term of nine months, upon trial under an indictment for maliciously striking and wounding Alex. McMurtry with a large wooden club.
After giving an instruction in the usual form under “the statute under which the indictment was found ¡(section 2, article 6, chapter 29, General Statutes), the ■court gave to the jury an instruction based on the provisions of section 1, article 17, chapter 29, of the…
2Cases cited4 opinions
- Commonwealth v. HawkinsCourt of Appeals of Kentucky · 1876
- Commonwealth v. DuncanCourt of Appeals of Kentucky · 1891
- Philpot v. CommonwealthCourt of Appeals of Kentucky · 1888
- Sosh v. CommonwealthCourt of Appeals of Kentucky · 1882
3Cited by7 opinions
- Board of Education of Calloway Cty. v. TalbottCourt of Appeals of Kentucky (pre-1976) · 1935
- Burgess v. CommonwealthCourt of Appeals of Kentucky · 1917
- Commonwealth v. HeathCourt of Appeals of Kentucky · 1896
- Black v. CommonwealthCourt of Appeals of Kentucky · 1916
- Ward v. CommonwealthCourt of Appeals of Kentucky (pre-1976) · 1927
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