Wattles v. Commonwealth
| Decision Date | 24 October 1919 |
| Citation | 185 Ky. 486,215 S.W. 291 |
| Parties | WATTLES v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County; Criminal Branch Criminal Division.
Sam Wattles was convicted of assault with intent to rob, and appeals. Affirmed.
Gardner K. Byers, of Louisville, for appellant.
Chas H. Morris, Atty. Gen., and Beverly M. Vincent, Asst. Atty Gen., for the Commonwealth.
The appellant, Sam Wattles, and another, Rob Ray, were jointly indicted for an assault with intent to rob, made a felony by section 1160, Kentucky Statutes. Ray pleaded guilty, and the appellant was convicted and sentenced to confinement for two years in the state penitentiary, from which judgment he prosecutes this appeal asking a reversal because of the failure of the court to instruct the jury upon the question of assault and battery, a lesser degree of the offense charged in the indictment, and upon the ground that the verdict is contrary to the evidence.
It was shown by the commonwealth's testimony, of which there is no contradiction, that near midnight on a Saturday in June 1919, Ray and another man committed an assault upon George Ehll in his place of business at Thirteenth and Walnut streets, Louisville, with the intention of robbing him, but that after assaulting him with a pistol and a glass bottle they were frightened away without having accomplished their purpose.
Appellant's defense was an alibi, and, in support of his own testimony that he was not with Ray or present at the time the offense was committed, he introduced Ray, who testified that one Ellis Wood was his confederate, and that appellant was not present or in any way implicated in the crime; but he testified, as had the witnesses for the commonwealth, that the assault committed upon Ehll was made with the intention of robbing him, so it is clear there was no evidence whatever of any kind of an assault except one committed with the intention to rob, and appellant was either guilty of this offense or not guilty of any, and the only question for the jury was as to whether appellant was present and assisted Ray in the assault made upon Ehll with intent to rob him. Hence the court did not err in failing to instruct upon the question of assault without such intention, since it is not proper for the court to instruct upon any question not supported by the evidence. Day v. Commonwealth, 173 Ky. 269, 191 S.W. 105; ...
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Cooksey v. Commonwealth
... ... overcome self-control. It is rudimentary that the ... instructions must be based upon the evidence for the purpose ... of advising the jury the law applicable under any hypothesis ... reasonably deducible from the evidence. Day v. Com., ... 173 Ky. 269, 191 S.W. 105; Wattles v. Com., 185 Ky ... 486, 215 S.W. 291; Barnes v. Com., 179 Ky. 732, 201 ... S.W. 318. In the absence of evidence of provocation ... reasonably calculated to excite the passions beyond control, ... there is no occasion for an instruction including that ... element. Cavanaugh v. Com., 172 Ky ... ...
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Cooksey v. Commonwealth
...the law applicable under any hypothesis reasonably deducible from the evidence. Day v. Com., 173 Ky. 269, 191 S.W. 105; Wattles v. Com., 185 Ky. 486, 215 S. W. 291; Barnes v. Com., 179 Ky. 732, 201 S.W. 318. In the absence of evidence of provocation reasonably calculated to excite the passi......
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Adkins v. Commonwealth
...one or the other was to be believed in preference to the other was a matter which the jury had the sole right to determine. Wattles v. Com., 185 Ky. 486, 215 S.W. 291. It cannot be disputed there were facts and circumstances tending to establish the guilt of the appellant, though there was ......
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Ringstaff v. Com.
...such intention, since it is not proper for the court to instruct upon any question not supported by the evidence. Wattles v. Commonwealth, 185 Ky. 486, 215 S.W. 291; Rush v. Commonwealth, 241 Ky. 306, 43 S.W.2d 713; Tomlinson v. Commonwealth, 261 Ky. 186, 87 S.W.2d Appellant next contends t......