Brown v. Commonwealth

• Decision Date: 13 November 1928
• Citation: 10 S.W.2d 820,226 Ky. 255
• Parties: BROWN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

10 S.W.2d 820

226 Ky. 255

BROWN v. COMMONWEALTH.

Court of Appeals of Kentucky

November 13, 1928

Appeal from Circuit Court, Edmonson County.

Alfred Brown was convicted of maliciously cutting and wounding another with intent to kill, and he appeals. Affirmed.

T. H Demunbrum, of Brownsville, for appellant.

J. W Cammack, Atty. Gen., and Samuel B. Kirby, Jr., Asst. Atty Gen., for the Commonwealth.

WILLIS J.

Alfred Brown was convicted of the crime of malicious cutting and wounding with intent to kill and sentenced to the penitentiary for one year. He has appealed to this court insisting that the verdict of the jury is palpably against the evidence. The commonwealth introduced five witnesses whose testimony tended to prove that the appellant approached Roy Hunt and, without provocation or excuse, assaulted him with a razor or some similar weapon. Hunt was wounded in the back and on the face, and escaped from the appellant by running away. The wound in the victim's back was five inches or more in length. The testimony tended further to show that the appellant was under the influence of intoxicating liquor. The defense was rested solely upon the testimony of appellant, and consisted of an admission that he did the cutting and wounding, and an assertion that it was done in self-defense when appellant was being assaulted with a pole in the hands of Hunt. It is apparent from this brief statement that the evidence presented an issue of fact for the jury to try, and it is obvious that the jury was justified, under the instructions of the court, in finding the appellant guilty of a felony. The court was compelled by the indictment upon which appellant was being tried, and the evidence adduced, to give those instructions in order to comply with the rule requiring the court to give the jury the whole law applicable to the facts.

It is now argued that the evidence was deficient in two particulars. It is said there was no proof of previous malice or intent to kill, and that the verdict, rested on a finding of malicious cutting with intent to kill, is palpably against the evidence. It is said that the absence of malice may be inferred from the fact that no previous ill will toward Hunt was proven, and that the intent to kill, ordinarily presumed from the assault itself, is rebutted by the fact that the portion of the victim's body where the razor was applied was not a vital spot and that the razor used was not a deadly weapon. "Malice," in its legal sense, is the intentional doing of a wrongful act toward another without legal justification or excuse. Ludwig v. Commonwealth, 60 S.W. 8, 22 Ky. Law Rep. 1108; Nichols v. Commonwealth, 11 Bush, 582. It may be implied from any deliberate, cruel, and injurious act, however suddenly done. Kriel v. Commonwealth, 5 Bush, 362; Ewing v. Commonwealth, 129 Ky. 237, 111 S.W. 352, 33 Ky. Law Rep. 749; Walker v. Commonwealth, 7 Ky. Law Rep. 44; Turner v. Commonwealth, 167 Ky. 365, 180 S.W. 768, L. R. A. 1918A, 329.

It was for the jury to say whether cutting a man in the back was calculated to kill him, and it was likewise for that tribunal to determine whether the weapon used was a deadly one. Wilson v. Com., 3 Bush, 107; Moore v. Com., 35 S.W. 283, 18 Ky. Law Rep. 129; Com. v....