Gratz v. Commonwealth

• Decision Date: 20 November 1894
• Citation: 96 Ky. 162
• Parties: Gratz v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 162

96 Ky. 162

Gratz v. Commonwealth.

Court of Appeals of Kentucky.

November 20, 1894.

APPEAL FROM CLARK CIRCUIT COURT.

L. J. MOORE FOR APPELLANT.

WM. J. HENDRICK, ATTORNEY-GENERAL, FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

The indictment under which appellant was convicted is as follows: "The grand jury of Clark county, in the name and by the authority of the Commonwealth of Kentucky, accuse David Gratz of the crime of malicious cutting and wounding with intent to kill, committed as follows, viz: That said David Gratz on the twenty-fifth day of September, 1884, in the county aforesaid, did unlawfully, willfully, feloniously and maliciously cut and wound T. M. Newton with a knife with intent to kill him, the said Newton, of which cutting and wounding he did not die, against the peace and dignity of the Commonwealth of Kentucky."

The statute, section 1166, provides that if "any person shall willfully and maliciously cut * * another with a knife * * with intention to kill, if the person so cut * * die not thereby, he shall be confined in the penitentiary not less than one nor more than five years."

It will be observed that two words, "willfully" and "another," used in the statute, are omitted from description of the offense charged in the indictment, which counsel now contend is a fatal defect.

All the Criminal Code requires when an offense charged has "no general name, is a brief general description as given by law." (Section 123.) And "the words used in a statute to define an offense need not be strictly pursued in an indictment, but other words conveying the same meaning may be used." (Section 126.)

It seems to us that the offense of which appellant is accused is so fully and clearly described in the indictment as to leave no reasonable doubt it is the same as that defined and denounced in section 1166 of the statutes. For a charge or accusation that a defendant cut and wounded maliciously, and with intent to kill, necessarily means he did the act willfully; and use, in that connection, of the word "another," was not at all necessary to convey the idea the subject of such malicious cutting was a human being. Besides, the statement of acts constituting the offense is made "in such manner as to enable a person of common understanding to know what is intended, and with such degree of certainty as to enable the court to pronounce judgment on conviction according to rights of the case."

The language used imports that the offense charged was committed...