Flint v. Commonwealth

• Decision Date: 29 May 1883
• Citation: 23 S.W. 346,81 Ky. 186
• Parties: FLINT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

23 S.W. 346

81 Ky. 186

FLINT v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 29, 1883

Appeal from circuit court, Daviess county.

John Flint was convicted of maliciously cutting and wounding another, with intent to kill, and appeals. Reversed.

Defendant was indicted under Gen. St. c. 29, art. 6, § 2, which makes it a felony for any person to "willfully and maliciously cut, strike, or stab another with a knife, sword, or other deadly weapon, with intention to kill, if the person so stabbed, cut, or bruised die not thereby" etc.

J. A Dean, for appellant.

P. W Hardin, for the Commonwealth.

LEWIS J.

1. The charge in the indictment in this case, that "the defendant did unlawfully, feloniously, and maliciously, with intent to kill him, cut and wound one Philip Yeiser," is sufficient, under section 2, art. 6, c. 29, Gen. St., for the words used import an exercise of the will, and convey the same idea as do those contained in the section referred to.

2. It is assigned as an error that the court permitted the attorney for the commonwealth to state, in the presence of the jury what he expected to prove by the witness Spicer, the evidence offered having been decided incompetent. Witnesses had been introduced and testified in behalf of, and as to the character of, the defendant, when the witness Spicer was called by the commonwealth in rebuttal; and the first question put to him was whether or not he (the witness) and defendant had ever had a difficulty, which the court permitted answered, notwithstanding the objection of the defendant. The witness was then asked what occurred at that difficulty, the objection to which was sustained. But the court permitted the commonwealth's attorney, although the defendant objected, to state, in the presence of the jury that he expected the witness to state that "on an occasion the defendant attacked witness on the street, and knocked him off the sidewalk with a wagon spoke." If a party desires to reserve the question, a statement of what the witness would testify, if permitted, may be reduced to writing; but it is never proper to permit counsel, against the objection of the opposite party, to state orally, in the presence and hearing of the jury trying the case, what the rejected evidence would be, if permitted by the court to be introduced, for with it the jury have nothing to do, and should not be influenced by it. In this case the court erred in the first...