Brown v. Commonwealth

• Citation: 119 Ky. 670
• Parties: Brown v. Commonwealth.
• Decision Date: 21 February 1901
• Court: Kentucky Court of Appeals

Page 670

119 Ky. 670

Brown v. Commonwealth.

Court of Appeals of Kentucky.

February 21, 1901.

APPEAL FROM BOURBON CIRCUIT COURT — JAMES E. CANTRILL, CIRCUIT JUDGE.

DEFENDANT CONVICTED AND APPEALS. AFFIRMED.

NEVILLE C. FISHER AND HARMON STITT, ATTORNEYS FOR APPELLANT.

ROBT. J. BRECKENRIDGE, ATTORNEY GENERAL, FOR COMMONWEALTH.

OPINION OF THE COURT BY CHIEF JUSTICE PAYNTER — AFFIRMING.

The appellant, Brown was indicted in the Bourbon circuit court for the crime of willfully and maliciously shooting Flora Bradley with intent to kill, etc. The shooting was charged to have been done on the 6th of December, 1900. It is also averred that on the 23d of March, 1893, he was convicted in the Bourbon circuit court of a felony, to-wit, forcibly breaking and entering into a railroad depot with intent to steal property and things of value, the punishment for which was confinement in the penitentiary; that he was sentenced to two years' confinement in the penitentiary on the charge. It was further averred in the indictment that on the 30th day of November, 1895, he was convicted in the Bourbon circuit court under the name of Vernon Brown, and was again convicted of a felony, to-wit, forcibly breaking and entering into a railroad depot with intent to steal property and things of value, the punishment for which was confinement in the penitentiary; that he was for that offense convicted, and sentenced to the pententiary. The averments in the indictment, in addition to the charge of an offense for which he was put on trial, were with the view of increasing the penalty. They were based on section 1130, Ky. Stat., which reads as follows: "Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty, unless the jury shall find, from the record and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this State." The appellant asked for a reversal — First, because it was not averred in the indictment that the shooting of Flora Bradley occurred after the offense for which he had been previously convicted; second, that the court erred in not giving an instruction on the question of shooting in sudden heat and passion; third, because the court did not tell the jury to find the defendant not guilty as to former convictions, because it was not shown that...