Hoskins v. Commonwealth

• Decision Date: 28 November 1911
• Citation: 145 Ky. 580,140 S.W. 1040
• Parties: HOSKINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

140 S.W. 1040

145 Ky. 580

HOSKINS v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 28, 1911

Appeal from Circuit Court, Lee County.

Garfield Hoskins was convicted of manslaughter, and he appeals. Reversed and remanded.

Sutton & Hurst, G. W. Gourley, and E. E. Hogg, for appellant.

Jas Breathitt, Atty. Gen., and Chas. H. Morris, for the Commonwealth.

LASSING J.

On June 1, 1910, Garfield Hoskins shot and killed Harrison Hargis in Beattyville, Lee county, Ky. Shortly thereafter he was indicted in the Lee circuit court for willful murder. When the case was called for trial, counsel for the accused demurred to the indictment; but this was overruled. He was three times put upon his trial, with the result that the jury failed to agree; but upon his fourth trial, held at the June term of court, 1911, he was found guilty of manslaughter, and his punishment fixed at confinement in the penitentiary for 21 years. He appeals, and seeks a reversal because the trial court erred in refusing to sustain the demurrer to the indictment.

The ground upon which this demurrer is based is that it is not charged in the indictment that the shooting and killing was feloniously done. This question has several times been before this court, and in the leading case of Kaelin v. Commonwealth, 84 Ky. 354, 1 S.W. 594, 8 Ky. Law Rep 293, which was an indictment for murder, it was expressly held that the omission of this word from the indictment rendered it fatally defective. In the later case of Stroud v. Commonwealth, 19 S.W. 976, 14 Ky. Law Rep 179, the accused was indicted for murder. Upon a trial he was found guilty of manslaughter. The indictment did not charge that the killing was feloniously done. It was urged upon appeal here that, as he was found guilty of manslaughter, the defect in the indictment was cured. But upon consideration it was held that, as the crime was a common-law offense, the felonious intent was a necessary ingredient, and the defect in the indictment in failing to charge that the killing was feloniously done was not cured by the verdict; the court holding "that a felonious intent is of the substance of every such [common-law] offense. One cannot be convicted of a felonious killing, unless it is charged that it was done feloniously." The rule announced in those opinions has been steadfastly adhered to, and is controlling in the case at bar. The demurrer should have been sustained.

Though...