Dowell v. Commonwealth

• Decision Date: 25 March 1908
• Parties: DOWELL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

108 S.W. 847

DOWELL v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 25, 1908

Appeal from Circuit Court, Daviess County.

"Not to be officially reported."

W. H L. Dowell was convicted of crime, and he appeals. Affirmed.

Watkins & Birkhead, for appellant.

James Breathitt, Atty. Gen., Tom B. McGregor, and C. H. Morris, for the Commonwealth.

O'REAR C.J.

Appellant was convicted of the felony of maliciously shooting at another with intent to kill, but without wounding. He assigns three grounds for a reversal of the judgment:

First. There were two witnesses introduced by the prosecution whose names did not appear at the foot of the indictment. It is not contended that they were introduced before the grand jury. Section 120, Cr. Code Prac., is relied on. It reads "When the indictment is found the names of all the witnesses who were examined must be written at the foot of or on the indictment." The purpose of this statute is to inform the defendant of the names of his accusers. It is directory, and ought to be complied with. But a failure to do so neither invalidated the indictment nor prevents the introduction of the witnesses whose names do not so appear. Underwood v. Commonwealth, 84 S.W. 310, 27 Ky. Law Rep. 8.

The second ground assigned is that the evidence showed without contradiction that the accused did not use a deadly weapon in shooting at the prosecuting witness. Appellant and another testified that the gun was loaded with powder only. While no witness testified that it was loaded with a ball, from all that was said and done by appellant on that occasion it was fairly inferable that it was so loaded. Whether the gun was or not loaded with powder and ball was a question of fact for the determination of the jury, to be found, not upon the direct testimony alone, but from all the evidence before them. The instructions required the jury to believe from the evidence beyond a reasonable doubt that appellant not only fired the gun with the malicious intent charged, but that it was then loaded with powder and ball. In this connection appellant complains that the jury were not specifically instructed that if they believed the gun was not loaded with ball it was not a deadly weapon, and therefore defendant would not be guilty of the offense charged, although he maliciously discharged the gun at the prosecuting witness. Whilst such an instruction would not have been out of place it was not...