Cundiff v. Com.
| Citation | 86 Ky. 196,5 S.W. 486 |
| Parties | CUNDIFF v. COMMONWEALTH. |
| Decision Date | 25 October 1887 |
| Court | Court of Appeals of Kentucky |
Appeal from circuit court, Ohio county.
E. Dudley Walker, for appellant.
P. W. Hardin, for appellee.
The appellant was indicted, tried, and convicted in the Ohio circuit court for the willful and malicious shooting and wounding -----Wallace with the intent to kill him, (Wallace.) The lower court having overruled the appellant's motion for a new trial, he has appealed to this court.
The language of the statute under which the appellee was indicted, tried, and convicted, reads as follows: "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, with a gun or other instrument loaded with leaden bullet," etc. The indictment follows the language of the statute supra, and charges that the instrument used was a pistol. The acts mentioned in the statute supra create a crime. The language used describes the crime in all its parts; every act essential to constitute the crime is set forth. Therefore, if the indictment follows the language of the statute, as was done in this case, it sufficiently sets forth the crime. In cases of crime, at common law, where the acts, in order to constitute the crime, must be done with a felonious intention, it is necessary to set out such intention in the indictment. In such cases, the felonious intention is an essential ingredient of the crime, and the indictment is insufficient if it fails to set out such ingredient. Such was the ruling of this court in Kaelin v. Com., 1 S.W. 594. The distinction between the two classes of cases is readily perceived.
We have examined the instructions given and refused by the lower court. Those given are substantially correct, and those refused should not have been given.
The evidence shows clearly that the appellant is guilty of the crime charged. The judgment of the lower court is affirmed.
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Allen v. Commonwealth
... ... so as to apprise a person of ordinary understanding of what ... is meant. Knoxville Nursery Co. v. Com., 108 Ky. 6, ... 55 S.W. 691, 21 Ky. Law Rep. 1483; Com. v ... Schatzman, 118 Ky. 624, 82 S.W. 238, 26 Ky. Law Rep ... 508; Com. v. Drewry, 126 ... 266, 31 ... Ky. Law Rep. 635; Overstreet v. Com., 147 Ky. 471, ... 144 S.W. 751; Drury v. Com., 162 Ky. 123, 172 S.W ... 94; Cundiff v. Com., 86 Ky. 196, 5 S.W. 486, 9 Ky ... Law Rep. 537; Com. v. Grinstead, 108 Ky. 59, 55 S.W ... 720, 57 S.W. 471, 21 Ky. Law Rep. 1444, 22 Ky ... ...
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Gravitt v. Commonwealth
... ... which constitute guilt of the crime, and in this it is ... different from a common-law felony. Higgins v. Com., ... 94 Ky. 54, 21 S.W. 231, 14 Ky. Law Rep. 729; Kaelin v ... Com., 84 Ky. 354, 1 S.W. 594, 8 Ky. Law Rep. 293; ... Cundiff v. Com., 86 Ky ... ...
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Allen v. Commonwealth
...Ky. 624; Commonwealth v. Drewery, 126 Ky. 183; Overstreet v. Commonwealth, 147 Ky. 471; Drury v. Commonwealth, 162 Ky. 123; Cundiff v. Commonwealth, 86 Ky. 196; Commonwealth v. Grinstead, 108 Ky. 59; Mitchell v. Commonwealth, 88 Ky. 349; Commonwealth v. C. & O. Ry. Co., 101 Ky. 159; Blackbu......
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