Commonwealth v. Browning

• Decision Date: 14 February 1912
• Citation: 146 Ky. 770,143 S.W. 407
• Parties: COMMONWEALTH v. BROWNING.
• Court: Kentucky Court of Appeals

143 S.W. 407

146 Ky. 770

COMMONWEALTH v. BROWNING.

Court of Appeals of Kentucky.

February 14, 1912

Appeal from Circuit Court, Harlan County.

Will Browning was indicted for willfully and maliciously shooting at and wounding a person named with intent to kill. Jury waived and case submitted to the court on plea of former conviction and agreed facts. From a judgment dismissing the indictment, the commonwealth appeals. Opinion certified as the law of the case.

Jas Garnett, Atty. Gen., and M. M. Logan, Asst. Atty. Gen., for the Commonwealth.

W. F Hall and J. S. Forester, for appellee.

SETTLE J.

Two indictments against the appellee, Will Browning, were returned by the grand jury of Harlan county at the same term of the circuit court of that county. One of them charged that he willfully and maliciously shot at and wounded Marion Stewart, with the intent to kill him; the other, that he willfully, maliciously, and with like intent shot at and wounded Robert Caywood. It does not appear from the record whether the shooting was done with a gun or pistol, but it does appear that appellee was engaged in a difficulty with Stewart and Caywood at the time of the shooting; that he shot at them but once, and that both were struck and wounded by one ball or load of shot, though neither died of the wound received. It also appears that appellee was first tried for the shooting and wounding of Stewart, and that notwithstanding his plea of not guilty and claim that the shooting of Stewart was in self-defense, the jury by their verdict found him not guilty as charged in the indictment but guilty of shooting and wounding him in a sudden affray, or sudden heat and passion, and fixed his punishment at a fine of $250 and 30 days' confinement in jail. When, at a subsequent term of the court, appellee was put upon his trial for the shooting of Caywood, he filed a writing containing a plea in bar, based on his conviction on the trial under the indictment for shooting and wounding Stewart. By agreement between appellee and the commonwealth's attorney, entered of record, a jury was waived, and the case submitted to the court for trial and judgment upon the plea of former conviction and agreed facts relied on by appellee in support thereof. While not so stated in the agreement of the parties, it seems to have been understood by them that, in the event the court refused to sustain appellee's plea of former conviction, it would adjudge him guilty of shooting and wounding Caywood in a sudden affray or sudden heat and passion, and inflict upon him adequate punishment therefor by way of a fine. The court, however, sustained appellee's plea of former conviction, and entered judgment dismissing the indictment, and from that judgment the commonwealth prosecutes this appeal.

The record presents but one question for decision, viz.: Was the conviction of appellee for the shooting and wounding of Stewart a bar to his prosecution for shooting and wounding Caywood? It is urged by his counsel that the plea in...