Commonwealth v. Patrick

• Decision Date: 18 January 1883
• Citation: 4 Ky.L.Rptr. 660,80 Ky. 605
• Parties: The Commonwealth v. Patrick, & c.
• Court: Kentucky Court of Appeals

80 Ky. 605

4 Ky.L.Rptr. 660

The Commonwealth v. Patrick, & c.

Court of Appeals of Kentucky.

January 18, 1883

1. The indictment against appellees is under section 2 article 6, chapter 29, General Statutes.

2. It provides that if any person shall willfully and maliciously shoot at and wound another with an intention to kill him, so that he does not die thereby, & c., & c.

3. Each act of shooting is a distinct offense, and if it is not a physical impossibility for two persons to jointly commit the same act with the same weapon, fired by both at the same time, it would be so absurd that we can hardly presume the legislature intended to guard against it.

4. Conspiring and confederating to commit the offense is not punishable under the statute, inasmuch as there is no express provision in regard to it.

5. Both cannot be indicted as principals, nor can either be indicted as an aider and abettor until the other is charged with commission of the felony.

APPEAL FROM MAGOFFIN CIRCUIT COURT.

P. W HARDIN, ATTORNEY GENERAL, AND P. G. KENNER FOR APPELLANT.

No brief.

OPINION

LEWIS JUDGE.

Section 2, art. 6, chap. 29, General Statutes, under which the two defendants were indicted in this case, provides that " if any person shall willfully and maliciously shoot at and wound another with an intention to kill him, so that he does not die thereby, … … he shall be confined in the penitentiary not less than one nor more than five years and any one who shall counsel, aid, or abet in the commission of any of the offenses named in this section shall be fined not exceeding five hundred dollars, or confined in the jail not less than six nor more than twelve months, or both, in the discretion of the jury."

The offenses, as charged in the indictment, are, that Amos Patrick and Wiley C. Patrick did willfully and maliciously shoot at and wound Joseph Dyer with a pistol, loaded with powder and ball, with an intention to kill him; but he did not die, and that each of them was present, and did aid and abet, advise and encourage the other, and they also conspired together to commit the offense.

This court, in the case of Stamper v. The Commonwealth, 7 Bush, 612, said that " where the punishment is imposed by the statute upon the person alone who actually committed the acts constituting the offense, and not in general terms upon those who were guilty of the offense according to common law rules, mere aiders and...