Ward v. Commonwealth
| Decision Date | 11 May 1910 |
| Citation | 128 S.W. 72 |
| Parties | WARD v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Garrard County.
"Not to be officially reported."
William H. Ward was convicted of assault, and appeals. Affirmed.
W. L Williams, for appellant.
Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.
In the year 1908 the defendant, William H. Ward, made an assault upon Joe Robinson by drawing a pistol upon him within shooting distance, and at the same time using such language to him as indicated a desire to have then and there a pistol battle with him. The grand jury of Garrard county, being of the opinion that the language used by Ward amounted to a challenge to fight a duel with deadly weapons, at the June, 1908, term of the circuit court, returned two indictments against him, one for challenging another to fight a duel with deadly weapons, and the other for the common-law misdemeanor of assault. The defendant was tried under the indictment for challenging another to fight a duel with deadly weapons, and was found guilty by the jury. From the judgment predicated upon that verdict the defendant prosecuted an appeal to this court, and we reversed the judgment, holding that neither the facts stated in the indictment nor those proved upon the trial constituted an offense under the dueling statute. Ward v. Commonwealth, 116 S.W. 787. When the case returned to the circuit court, the commonwealth dismissed the indictment without prejudice. Afterwards, the defendant was put upon trial under the indictment for assault, with the result that he was found guilty and his punishment fixed by a fine of four hundred dollars. Of the judgment based upon this verdict the defendant now complains.
The first error which the defendant (appellant) urges is that the court overruled his plea of former jeopardy, and he insists that, the commonwealth having indicted him under the dueling statute for the same acts which constitute the cause of action set up in the indictment for assault, therefore it is now barred from further prosecuting him. We do not find it necessary in this case to show, as might easily be done, that the offense for which the defendant was first tried is severable from that contained in the preceding indictment. But we deed it sufficient to say that, although the defendant was convicted on the first trial under the indictment based upon the dueling statute, judgment was reversed by this court and the case sent back to the circuit court, and was there dismissed by the commonwealth. The reversal of the case placed the appellant in the same attitude as if he had...
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Foster v. Commonwealth of Kentucky, 15047.
...same as if no offense had been committed and that no double jeopardy exists. Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091; Ward v. Commonwealth, Ky., 128 S.W. 72; Hoskins v. Commonwealth, 152 Ky. 805, 154 S.W. 919; Newton v. Commonwealth, 197 Ky. 496, 247 S.W. 707; Allen v. Commonwealth,......
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McCreary v. Commonwealth
...... Wells v. Commonwealth,. 6 S. W. 150, 9 Ky. Law Rep. 658; Haskins v. Commonwealth, 1 S. W. 730, 8 Ky. Law Rep. 419. [ 1 ] ; Mount v. Commonwealth, 2. Duv. 93; White v. Commonwealth, 9 Bush, 178;. Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091, 22. Ky. Law Rep. 1111; Ward v. Commonwealth, 128 S.W. 72. . . Further. following the principles stated, this court has often held. that, where a new trial has been granted, the first. indictment may be dismissed and a new indictment found, and. the prosecution proceed upon the new indictment. . ......
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Foster v. Com.
...offense, the defendant does not have a meritorious plea of former jeopardy. Fain v. Commonwealth, 109 Ky. 545, 59 S.W. 1091; Ward v. Commonwealth, Ky., 128 S.W. 72; Hoskins v. Commonwealth, 152 Ky. 805, 154 S.W. 919; Newton v. Commonwealth, 197 Ky. 496, 247 S.W. 707; Allen v. Commonwealth, ......
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Hoskins v. Commonwealth
......Rep. 114); and, if a new trial is granted, the first indictment. may be dismissed and a new indictment found, the trial under. the second indictment being had as though there had been no. previous trial of the case (Fain v. Commonwealth,. 109 Ky. 545, 59 S.W. 1091, 22 Ky. Law Rep. 1111; Ward v. Commonwealth, 128 S.W. 72, and cases cited). It is. insisted for the appellant that the former indictment was at. least sufficient to sustain a conviction for involuntary. manslaughter. If the defendant had been acquitted under that. indictment, a different question would be presented, ......