Commonwealth v. Hawkins

• Decision Date: 06 January 1876
• Citation: Commonwealth v. Hawkins, 74 Ky. 603 (Ky. Ct. App. 1876)
• Parties: Commonwealth v. Hawkins.
• Court: Kentucky Court of Appeals

74 Ky. 603

Commonwealth v. Hawkins.

Court of Appeals of Kentucky.

January 6, 1876

APPEAL FROM BRECKINRIDGE CIRCUIT COURT.

THOS E. MOSS, Attorney General, For Appellant,

CITED

General Statutes, chap. 29, art. 17, sec. 1.

OPINION

COFER JUDGE:

The indictment in this case charged that the appellee " did in sudden heat and passion, without previous malice, and not in self-defense, strike and wound George Gregory with a pair of blacksmith's tongs, which said tongs was then and there a deadly weapon."

The appellee, in a plea of former conviction, alleged that he had been arrested and tried and convicted before a justice for a breach of the peace, committed by fighting with George Gregory, and had paid the fine assessed against him, and that said conviction was for the identical acts charged in the indictment.

A demurrer to the plea having been overruled, the commonwealth confessed the facts stated therein, and the indictment was dismissed, and this appeal is prosecuted to obtain a reversal of that judgment.

The indictment does not state facts constituting an offense within section 1, article 17, chapter 29 of the General Statutes. That section only applies to wounds inflicted by shooting, or by cutting, thrusting, or stabbing with a knife, dirk, sword, or other deadly weapon, and does not embrace a wounding such as is charged in this case.

The indictment was therefore good only as an indictment for an assault and battery, and the question is whether a conviction for a breach of the peace is a bar to a subsequent prosecution for an assault and battery constituting a part of the transaction?

This question came before this court in 1837 in The Commonwealth v. Miller (5 Dana, 370), and it was then held, though not without some hesitation, that conviction for a breach of...