Hensley v. Commonwealth

• Decision Date: 06 December 1866
• Citation: 64 Ky. 11
• Parties: Hensley v. Commonwealth.
• Court: Kentucky Court of Appeals

64 Ky. 11

Hensley v. Commonwealth.

Court of Appeals of Kentucky.

December 6, 1866

1. A conviction on an indictment for stealing Stephen Daniel's hog, upon proof that the defendant stole Philip Daniel's hog, held to be erroneous. The offense charged and that proved being essentially different, the indictment was not legal notice of the crime intended to be proved. The conviction for stealing Stephen's hog would not bar another prosecution for stealing Philip's hog, even though the same hog and the same offense.

APPEAL FROM HARLAN CIRCUIT COURT.

LEONARD FARMER, For Appellant,

CITED--

1 Duvall, 91; Mount vs. Commonwealth.

18 B. Mon., 493; White vs. Commonwealth.

3 Metcalfe, 5; Commonwealth vs. Perrigo.

Section 129; Crim. Code.

Sec. 256-7, and 8, pp. 257 and 8, Amer. Crim. Law.

Wills' Cir. Ev., 71-2.

2 Duvall, 435; Butler vs. Commonwealth.

JOHN M. HARLAN, Attorney General, For Appellee,

CITED--

3 Greenleaf's Ev., sec. 161, & c.

OPINION

ROBERTSON, JUDGE.

Indicted for stealing Stephen Daniel's hog, the appellant was convicted on proof of stealing the hog of Philip Daniel. The offense charged and that proved being thus essentially different, the indictment was not legal notice of the crime intended to be proved; and the conviction for stealing Stephen's hog would not bar another prosecution for stealing Philip's hog, even though the same hog and the same offense.

Wherefore, the judgment is reversed, and the cause remanded for a new trial or dismission of the prosecution.