Conner v. Commonwealth
| Decision Date | 19 April 1878 |
| Citation | 76 Ky. 714 |
| Parties | Conner v. Commonwealth. |
| Court | Kentucky Court of Appeals |
APPEAL FROM SHELBY CIRCUIT COURT.
CALDWELL & HARWOOD FOR APPELLANT.
T. C. BELL ON SAME SIDE.
THOMAS E. MOSS, ATTORNEY-GENERAL, FOR APPELLEE.
JUDGE COFER DELIVERED THE OPINION OF THE COURT.
The appellant was indicted in the Shelby Circuit Court on the 10th day of September, 1877, for the murder of J. W. Cowherd, "committed in manner and form as follows, to wit: The said Samuel Conner in the said county of Shelby, on the 23d day of August, 1875, . . . did feloniously, willfully, and with malice aforethought, kill and slay and murder J. W. Cowherd, by then and there striking him on the head with a club, a bludgeon, a croquet-mallet, a deadly weapon, of which said striking, he, the said Cowherd, did die, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the Commonwealth of Kentucky."
A trial was had, and the jury returned into court the following verdict, to wit: "We, the jury, find the defendant guilty of killing by willfully striking, and fix his punishment at confinement in the penitentiary for one year."
The appellant thereupon "moved the court to enter a judgment upon the verdict discharging him from custody, and as acquitted of the crime charged against him in the indictment."
The court overruled the motion, and the appellant excepted and prosecutes this appeal to reverse that order.
After instructing the jury in the law of murder and voluntary manslaughter, the court gave the following, viz: "If, however, the jury believe from the evidence, beyond a reasonable doubt, that at the time and place, and in the manner heretofore stated, the defendant struck said Cowherd willfully, that is, intentionally, when such striking was not done in his necessary, or apparently necessary, self-defense, nor in an attempt to keep or preserve the peace, and that said Cowherd died within six months thereafter, then although they may not believe that defendant designed to produce or cause said Cowherd's death, they should find him guilty of killing by `willfully striking,' and fix his punishment at confinement in the penitentiary not less than one nor more than six years."
The verdict shows that it was found under this instruction, which was based on section 2, article 4, chapter 29, General Statutes, which reads as follows, viz:
Section 3, article 3, and section 1, article 4, prescribe the punishment of murder and voluntary manslaughter.
Appellant's counsel contend that the indictment in this case did not authorize the jury to find him guilty of the offense mentioned and described in section 2, article 4. In other words, that that offense is not included in the crime of murder, and is not a degree of the "offense of homicide" within section 263, Criminal Code.
By the rules of the common law felonious homicide was divided into murder, voluntary manslaughter, and involuntary manslaughter.
Voluntary manslaughter is the unlawful, intentional killing of another without malice, and involuntary manslaughter is the killing of another in doing some unlawful act but without an intention to kill, and this may be either where the act is directed against the person killed, or where it is directed against another person or thing and kills one not intended to be hurt. (4 Blackstone, 192.)
The jury, by their verdict, found that the appellant did not intend to kill Cowherd, which was equivalent to finding him not guilty of either murder or voluntary manslaughter, and his motion to be discharged should have been sustained, unless the crime of which the jury found him guilty is included in the crime of murder for which he was indicted, or is a degree of the "offense of homicide."
Section 262 of the Criminal Code provides, that "Upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment."
Both voluntary and involuntary manslaughter are included in the crime of murder, and one indicted for murder may be convicted of murder or either of the degrees of manslaughter.
For the crime of murder and voluntary manslaughter our statute has prescribed punishments. Sections 3, article 3, chapter 29, General Statutes, for the former, and section 1, article 4, for the latter. But no punishment is prescribed by statute for involuntary manslaughter, unless section 2 article 4, quoted supra, can be construed as defining that crime.
Section 3, article 3, and section 1, article 4, prescribe the punishment for murder and voluntary manslaughter by name, and without attempting any definition of either of those crimes. We are therefore to look to the common law for the definition of the terms murder and voluntary manslaughter. And we are also to look to the common law for the definition of involuntary manslaughter, and by comparing that definition with the statute (sec. 2, art. 4), to decide whether the offense described in the statute is the same as the common-law offense of involuntary manslaughter.
At the common law there could be neither murder nor voluntary or involuntary manslaughter, unless the person slain died within a year and a day after the injury was received. The offense described in the statute is not committed unless the person slain shall die of the injury within six months next after it is received.
The statutory offense is therefore not the same as the common-law offense of involuntary manslaughter.
Moreover the statutory offense is limited to cases in which the homicide results from striking, stabbing,...
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Hocker v. Commonwealth
...the punishment for murder, without attempting any definition of it. We are therefore to look to the common law for the definition. Conner v. Com., 76 Ky. 714. crime of murder at the common law was correctly defined by the instruction of the court above quoted. 4 Bl. Comm. 194, 195. The verd......