Morgan v. Commonwealth
| Decision Date | 26 May 1916 |
| Citation | 170 Ky. 400,186 S.W. 132 |
| Parties | MORGAN v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Whitley County.
Melt Morgan was convicted of crime, and he appeals. Judgment reversed, and cause remanded for proceeding consistent with opinion.
Henry C. Gillis and B. B. Snyder, both of Williamsburg, for appellant.
J. B Snyder, of Williamsburg, and A. M. Logan, Atty. Gen., for the Commonwealth.
The appellant, Melt Morgan, was indicted for a violation of the provisions of section 1309 of Kentucky Statutes. The charges in the indictment were not stated in separate counts, but the necessary allegations to constitute a good charge against him for the offense of unlawfully carrying concealed upon or about his person a deadly weapon, other than an ordinary pocketknife, were first set out in the indictment, and following these, and before the conclusion of the indictment as "against the peace and dignity of the commonwealth of Kentucky," were inserted the following words:
"The grand jury does further charge that the defendant committed the offense of carrying concealed a deadly weapon before the offense hereinbefore stated and for which he has been tried and convicted upon said charge at the present term of this court, and that this is the second offense upon the charge of carrying a concealed deadly weapon in this commonwealth."
To this indictment the defendant entered a plea of not guilty, but upon the trial he was found guilty by a verdict of the jury and sentenced to a term in the penitentiary or state reformatory by the court. The instructions to the jury, in substance, directed it, that if it believed beyond the influence of a reasonable doubt that the appellant was guilty of carrying a concealed deadly weapon, other than an ordinary pocketknife, to wit, a pistol, upon or about his person, and further believed that previous to the time of carrying of the weapon, as charged in the indictment, he had been convicted of a similar offense, to find him guilty and fix his punishment at a term of imprisonment in the penitentiary. The evidence discloses that the first offense, and of which the indictment charges his conviction, was committed upon the 22d day of February, 1916; that he was indicted for it on the 23d day of February, and his conviction had on the 3d day of March, 1916. The offense of unlawfully carrying concealed a deadly weapon, for which he was indicted, in the case at bar, was committed upon the 28th day of February, 1916, and the indictment was returned against him upon the 2d day of March following. Following his conviction, his motion for a new trial being overruled, he has appealed to this court. He insists that the trial court was in error in permitting any evidence to be heard relating to his previous guilt of unlawfully carrying concealed a deadly weapon, and in instructing the jury to find him guilty and fix his punishment at imprisonment in the penitentiary if it should believe him guilty of the offense alleged to have been committed by him upon the occasion charged in the indictment, and that he had been previously convicted of a similar offense, because the second offense had not been committed by him subsequent to his conviction of the first offense; and, further, that the charge in the indictment relating to the first offense was not sufficient to authorize evidence of his having previously been convicted of such an offense. In both contentions he seems to be correct. Section 1309, Ky. St., under the provisions of which the prosecution was sought to be had, creates the offense of carrying...
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