Napier v. Com.
| Decision Date | 20 April 1962 |
| Citation | 356 S.W.2d 755 |
| Parties | Bobby NAPIER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Denver Adams, Hyden, for appellant.
John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
STANLEY, Commissioner.
Watt Roberts and his wife, Nannie, lived in a two room house in a remote section of Leslie County. Early in the night of July 30, 1960, according to their evidence, the appellant, Bobby Napier, and Walter 'Possum' Howard broke through their door, brutally attacked and wounded both of them with a club and took Mrs. Roberts' purse containing $190 from a peg in the wall. An indictment charged Napier and Howard with armed robbery. On Napier's separate trial he and Howard were positively identified by the victims of the crime as the culprits. There were corroborating circumstances. Napier's defense was an alibi.
'Armed robbery' is implicitly defined by statute as the commission of robbery by the use or display of a 'pistol, gun or other firearm or deadly weapon.' The punishment prescribed is either life imprisonment. or death. KRS 433.140. The court, nevertheless, instructed the jury that if they should believe from the evidence beyond a reasonable doubt that the defendant had robbed Nannie Roberts of $190 by putting her 'in fear of bodily harm by the use and display of a club or clubs, an offensive weapon or weapons,' they should find the defendant guilty of 'robbery by the use and display of an offensive weapon or weapons and fix his punishment at confinement in the penitentiary for 21 years, life or death, in the discretion of the jury.' The verdict, written on the instructions, was, 'We, the jury, find him guilty and give him 21 years.' The judgment imposed that penalty as being for armed robbery. That was unauthorized. Thomas v. Maggard, Ky., 313 S.W.2d 271.
It is readily apparent that the instruction was erroneous in permitting conviction of the crime charged if it was committed by the use of an 'offensive weapon' rather than 'deadly weapon,' and the imposition of a penalty not prescribed by the statute for armed robbery. Riley v. Commonwealth, 278 Ky. 732, 129 S.W.2d 581. The statute fixing punishment for 'armed assault with intent to rob' uses the term 'offensive weapon' rather than deadly weapon and authorizes a penalty of imprisonment for 21 years or for life or by death. But an 'offensive weapon' is not necessarily a 'deadly weapon.' Murphy v. Commonwealth,...
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Kennedy v. Com.
...between a 'deadly weapon' and a 'dangerous instrument,' this distinction has been made by the Court of Appeals. See Napier v. Commonwealth, 356 S.W.2d 755 (Ky.1962); Murphy v. Commonwealth (255 Ky. 676) 75 S.W.2d 341 (1934). It was put this way by the Court: The established rule on the subj......
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...by statute as the commission of robbery by the use or display of a pistol, gun or other firearm or deadly weapon. Napier v. Commonwealth, Ky., 356 S.W.2d 755 (1962). On July 8, 1973, between the hours of 8:30 and 9:00 a. m., Mr. and Mrs. Herschel Franklin drove into the service station and,......
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Meadows v. Com., CA-56-MR
...character depends upon the manner and circumstance of its use, the question is one of fact for the jury. See also Napier v. Commonwealth, Ky., 356 S.W.2d 755 (1962); Murphy v. Commonwealth, 255 Ky. 676, 75 S.W.2d 341 It is best stated in the commentary to the Kentucky Penal Code where the a......