Denham v. Commonwealth

• Decision Date: 20 January 1905
• Citation: 119 Ky. 508,84 S.W. 538
• Parties: DENHAM v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

84 S.W. 538

119 Ky. 508

DENHAM v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 20, 1905

Appeal from Circuit Court, Lincoln County.

"To be officially reported."

Hiram Denham was convicted of assault with intent to kill, and appeals. Affirmed.

C. C Williams, for appellant.

N. B Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.

SETTLE J.

On the night of October 20, 1902, one C. H. Vanarsdale, who resides in Lincoln county, on the Hustonville and Middlesburg pike was called to his front gate, situated within 30 yards of his house, upon reaching which he found two men, one a tall man and the other of lesser height. When Vanarsdale got to the gate the tall man asked if he was Mr. Vanarsdale, and said. "G-- d--n you, I am going to kill you," at the same time raising his arm, and holding in his hand something that Vanarsdale took to be a knife or pistol. Immediately following this demonstration the shorter man struck Vanarsdale in the face, and knocked him down. The blow was evidently inflicted with brass knucks, or other deadly weapon, as it lacerated Vanarsdale's face, and rendered him unconscious for some time; but he managed to either walk or crawl to the house, and after a time informed his family of what had been done to him. When he met his assailants at the gate he had $42 upon his person, but when he regained consciousness he discovered that the money was all gone. James Cottrell and the appellant, Hiram Denham, were arrested for the crime committed upon Vanarsdale, and both were soon thereafter jointly indicted by the grand jury of Lincoln county for willfully and maliciously striking and wounding Vanarsdale with a deadly weapon with intent to kill him, but of which he did not die. Cottrell was first tried, convicted, and sent to the penitentiary, but for what length of time the record in this case does not indicate. After many continuances of the prosecution as to the appellant, Denham, he was finally brought to trial, which resulted in his conviction, and the fixing of his punishment by the jury at confinement in the penitentiary for three years. He has appealed from the judgment of conviction, and now asks its reversal. Numerous alleged errors upon the part of the lower court were set forth in the grounds filed in support of the motion made by appellant for a new trial, but only three of them are now relied on in the brief of appellant's counsel.

It is contended for appellant, first, that the verdict returned by the jury was so indefinite and defective as to render it insufficient to support the judgment; second, that after the verdict mentioned was returned and the jury discharged the trial judge, being advised of the alleged defective character of the verdict, improperly recalled the jury, and caused them to retire and return another and second verdict, equally as defective in form and substance as the first, which he received, and upon which the judgment appealed from was entered; third, that the court admitted upon the trial incompetent evidence, greatly to appellant's prejudice. The language of the first verdict was as follows: "We the jury, fin the defendant guilty, fix his punishment three years in pen. S.E. Estes, Foreman." That of the second: 'We the jury find the defendant guilty and fix his punishment at three years in the state prison. S.E. Estes, Foreman." While each verdict is awkwardly expressed, we do not think either so defective as to affect its validity. Obviously, any one of average intelligence and ordinary understanding would know at a glance that the word "fin" in the first verdict was intended for "find," and that the word "pen" is a mere abbreviation of the word "penitentiary," an institution provided by the state, in which offenders against its criminal laws are confined for punishment and correction. Nor would a mistake be made by one of common understanding as to the meaning of the words "state prison." They are frequently used as synonymous with the word "penitentiary," never as meaning a jail, which, as is well known, is a prison appertaining to a county or municipality, in which are confined for punishment persons convicted of misdemeanors committed in the county or municipality. We think a judgment entered upon either verdict would have been good, as neither was fatally defective. Correction, however, of their first verdict by the jury was authorized. Judicial pride in maintaining a presentable, as well as accurate, record of the proceedings in his court, induced the trial judge, doubtless, to exclude from that record such a deformed verdict as was the one first returned by the jury; hence its correction was proper, though not necessary to its validity. If a verdict be so inadequate in form or substance, or its language so indefinite or ambiguous, as to make its meaning uncertain, the jury should be required to perfect it. This may be done by them in the presence of the court and under its direction, or after returning to the jury room, or it may be done by the court in the presence of the jury, and with their approval. Bishop's New Cr. Proc. vol. 1, § 1004. Where mistakes such as appear in the first verdict in this case occur, the necessary correction may be made by the jury or court in one of the several ways already indicated. Am. & Eng. Enc. of Law, vol. 28, p. 365. I...