Ison v. Commonwealth

• Decision Date: 17 January 1902
• Citation: 66 S.W. 184
• Parties: ISON v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

66 S.W. 184

ISON v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

January 17, 1902

Appeal from circuit court, Letcher county.

"Not to be officially reported."

Eli Ison was convicted of the offense of discharging a deadly weapon at random upon the public highway, and he appeals. Reversed.

D. D Fuld & Son, for appellant.

Morrison Breckinridge and R. J. Breckinridge, for the Commonwealth.

GUFFY C.J.

The appellant was indicted in the circuit court of Letcher county, charged with the offense of discharging a deadly weapon at random upon the public highway. The trial resulted in a verdict and judgment against appellant in the sum of $100, and, his motion for a new trial having been overruled he prosecutes this appeal. The grounds relied upon for a new trial are, in substance, as follows: (1) Error of the court as to the admission of evidence; (2) because the verdict is not supported by the evidence; (3) error of the court in failing to properly instruct the jury, and error by misinstructing the jury upon the law.

The appellant, in his brief, assumes that the indictment was not read to the trial jury, nor the plea of defendant announced by any one, and insists upon a reversal for that reason citing in support of his contention the case of Farris v Com. (Ky.) 63 S.W. 616. It is true that the opinion in the case supra decides that such failure is ground for a reversal, but we apprehend that the error complained of in that case was objected to at the time of trial, and relied upon as one of the grounds for a new trial. Nothing of that kind appears in the bill of exceptions in the case at bar. It is true that toward the close of the bill of exceptions this language is used: "This being all that was done, or all the proceedings had, on said trial or concerning same." We are not authorized to assume from this statement that the indictment in fact was not read to the jury, and, besides the failure to so read was not relied upon or referred to in any manner in the motion for a new trial. Even if it be conceded that the bill of exceptions should be construed to show that the indictment was not read, the failure of appellant to make the same one of the grounds for a new trial precludes him from relying upon such omission as ground for a reversal. It is a well-settled rule of this court that appellant should state in his reasons for a new trial the ground upon which he thinks the prejudicial error was...