Commonwealth v. Tupman

• Decision Date: 25 April 1895
• Citation: 30 S.W. 661
• Parties: COMMONWEALTH v. TUPMAN.
• Court: Kentucky Court of Appeals

30 S.W. 661

COMMONWEALTH v. TUPMAN.

Court of Appeals of Kentucky.

April 25, 1895

Appeal from circuit court, Adair county.

"Not to be officially reported."

Quintus Tupman was indicted for maliciously shooting, and, from a judgment sustaining a demurrer to the indictment, the commonwealth appeals. Affirmed.

J. C Muncie and Wm. J. Hendrick, for the Commonwealth.

PAYNTER J.

The indictment accuses Tupman of the crime of "maliciously shooting." No other words are used in the accusative part of the indictment to describe the offense. In describing the acts constituting the offense, it is charged that the accused did "unlawfully, maliciously, and feloniously shoot at S. B. Conover with pistols and guns, without wounding him, with the intention of killing the said Conover." Under the statute it is an offense to willfully and maliciously shoot at another without wounding or maliciously or willfully to shoot at or into a railroad passenger coach or steamboat occupied by any employé or passenger, or to willfully and maliciously shoot at and wound another with the intention to kill him. Under the accusation of "maliciously shooting," the particular acts alleged to constitute the offense might be "shooting at or into any railroad passenger coach, or shooting at or into a steamboat occupied by any employé or passenger, or other person or persons, or shooting at and wounding another, with the intention to kill him." Either of the acts constituting three distincts offenses, the one described in the indictment might have been described under the accusation of "maliciously shooting." To state that one is guilty of "maliciously shooting" is to charge no offense. The statute describes no such an offense. To hold that the indictment is good is to hold that the acts constituting either of the four distinct offenses can be described under the same accusation, to wit "maliciously shooting." Section 123 of the Criminal Code suggests the form of indictment to be used. It states when to give the "name of the offense," if it have one, such as treason, murder, etc., or, "if it have no general name, then a brief general description as given in the law." The offense described in the statute to which we have alluded does not have any general "name" by which it can be designated, as in case of murder, treason larceny, rape, etc. To use either of these words it is known what character of acts constitute the offense. When...