Case 26 — Indictment against George Cosby rob Maliciously Striking and Wounding Another with a Club and Rock with Intent to Kill.

March 19.

#### Cosby v. Commonwealth.

APPEAL PROM NELSON CIRCUIIT COURT.

Dependant ‘Convicted and Appeals.

Reversed.

Striking with Intent to Kill — Deadly Weapon — Club and Rock —Definite Instructions to Jury.

Held: 1. On the trial of one indicted for unlawfully and maliciously striking and wounding another with a deadly weapon with intent to kill, an instruction given in these words: “By the words deadly weapon as used in these instructions, is meant a weapon by which death might be produced in the manner in which defendant used the club and rock, or either, on the occasion mentioned in the indictment, if he used either on said occasion,” is erroneous.

2. The instruction defining deadly weapon in such a a. indictment should have been as follows: “If the jury believe from the evidence, beyond a reasonable doubt, that the club and rock, or either with which defendant struck and wounded Gilky (if he did so strike and wound him with either), were such instruments as were reasonably calculated to produce death when used by a person • of defendant’s physical strength, and in the manner in which they were used on the occasion mentioned in the indictment, they will, in that event be authorized to find that such rock and club or either are deadly weapons in the meaning of the law.”

3. It was proper to submit to the jury the question of whether the instruments used ‘by defendant, in the striking and wounding of Gilky, were or not deadly weapons, but it was also necessary to tell the jury in the instructions what may be considered a deadly weapon in the meaning of the law.

C. T. ATKINSON, attorney roe appellant.

I prosecute this appeal as attorney for defendant by appointment, believing he has not had a fair trial, and that the verdict is excessive.

If convicted at all he should have been convicted for striking *222in sudden heat and passion and fined, instead of being sent to the penitentiary.

The evidence showed that he had a sister, Rachel, under eighteen years of age, and who is an orphan, and he had reason to suspect that she was having illicit intercourse with the prosecutor, Gilky, and on the occasion of the striking, he, suspecting they were arranging for a meeting for illicit intercourse, followed and discovered them together in a secreted place, and, under this provocation, he struck Gilky with a stick. Gilky was a hoary headed sinner about seventy years of age, and while I do not claim that defendant was legally justified in his assault, I do claim that the facts, tending to mitigate the offense on the question of malice, are competent evidence in fixing the punishment. The lower court excluded all evidence tending to show previous intimacy between Gilky and the girl, Rachel, or that the meeting at the time of the difficulty had been previously planned. We think this was error. We also contend that the court erred in its instructions to the jury, especially in the four instructions defining a deadly weapon ás a “weapon with which death might be produced when used in the manner in which -the defendant used the club or rock,” etc.

.We also claim that appellant should have a new trial on account of newly discovered evidence of which he had no knowledge at the .time of the trial, and he, being a colored man, and confined in the jail from 'the day after the assault, unable to give bond, and without counsel, had no means of ascertaining the facts until after his trial, when, on account of the severity of the punishment, people began to talk.

The defendant also complains of the unbecoming conduct of the county attorney in his closing argument to the jury, in reference to defendant having been prosecuted for taking whisky, and his sister, Rachel, having been in jail for some offense, and of the action of counsel for defendant in excepting to some of the jurors on the panel, and though twice rebuked by the court, persisted therein until defendant’s counsel moved the court to discharge the jury, which the court refused to do, all of-which was highly prejudicial. to defendant. The defendant being a negro, and -the prosecuting witness a white man, and the jury all white men, there was no necessity for this violent prosecution and unfair and prejudicial conduct on the part of the prosecuting attorney.

We submit that as Gilky was not much hurt and got only what he deserved under circumstances- of great provocation, with a stick which was not a deadly weapon, the punishment *223inflicted by the jury is excessive, showing passion or prejudice, and defendant should have a new trial.

CLIFTON J. PRATT, attorney general, and M. R. TOD©, for the commonwealth.

It was the province of the jury to. pass upon the facts and where there is any evidence to sustain the verdict this court can not reverse upon that ground.

The evidence of Jennie Rawls as to some previous conduct ■and actions between the girl Rachel and Gilky was irrelevant, and was properly excluded by the court.

¡The court refused to withdraw the statements of Rachel as to her illicit intercourse with Gilky, and her statement with that of appellant went before the jury as mitigating facts in appellant’s favor.

Appellant’s counsel urges that the common law applicable to assault and battery is no longer in force, the same being repealed by implication; that the court erred in giving an instruction for assault and battery, hut should have given in lieu thereof an instruction for breach of the peace as provided in section 1268, Kentucky Statutes.

This is not an open question. In Riggs v. 'Com., 17 Rep., 1017, this court held that the offense denounced by section 1242, Kentucky Statutes, only applies to cases where the wounds are inflicted by *shooting, cutting, thrusting or stabbing,*and does not embrace a wound inflicted with a *wooden club.*

■The record discloses the fact that every objectionable statement made by the attorney for the Commonwealth was immediately excluded by the court and the jury admonished not to consider it. This was as much a» the defendant could reasonably ask.

The affidavits for a new trial do not disclose that the facts therein stated were not known to defendant before the trial, and are not of sufficient importance as to authorize the granting of a new trial.

CITATIONS.

■Rurrill on Crim. Evidence, 281; Rutherford v. IColm., 13 Bush, 68; Greenleaf Evidence, vol. 1, sec. 108; Crim. Code, sec. 341; Kentucky Statutes, sec. 1268; Riggs v. Com., 17 R., 1017; Erwin v. Com., 96 Ky., 422; McWilliams v. Com., 18 R., 92.

Opinion of the court by

JUDGE SETTLE

Reversing.

The appellant, George Oosby, was indicted in the Nelson circuit court for the crime of unlawfully and maliciously striking and wounding one ffm. Gilky with a club and rack, *224deadly weapons, with the intent to kill him. Upon- the trial appellant was found guilty by the verdict of the jury, and his punishment fixed at confinement in the penitentiary for a term of three years. A new trial was refused Mm; hence this appeal.

The lower court gave five instructions, four of which, viz., 1, 2, 3, and 5, we do not hesitate to approve, as they fairly and explicitly set forth, as far as they go, the law of the case; but we are unable to approve instruction No. 4 given by the court, which As ias follows: “By the words a deadly Weapon/' as used in these instructions, is meant a weapon With wMdh death might he produced in the manner in which defendant used the club and rock, or either, on the occasion mentioned in the indictment (if 'he used club and rock, or either, on said occasion.)” It was, of course, necessary to 3ubmit to the jury, as was done in instructions 1 and 2, the question of whether the instruments used by appellant in the striking and wounding of Gilky were or not deadly weapons, but it was also necessary to tell the jury in those instructions, or ia .separate one, what may be considered a deadly weapon in the meaning of the law. As said by this court in Commonwealth v. Duncan, 91 Ky., 595, 13 R., 162, 16 S. W., 531: “The statute does not say what shall constitute a deadly weapon. It merely punishes for a willful and malicious wounding with one. If one man maliciously wounds another with a rock, with which he might have killed him, there exists no reason why the same punishment should not he meted out to him as if he had done it with a shotgun; and undoubtedly the Legislature, in enacting this statute, so intended. Whether in this instance the rock was large enough to produce death, and therefore a deadly weapon, should have been left to the jury, and the court erred in taking the question from them.” This court has never adopted *225a form .of instruction defining the meaning of the words “deadly weapon,” and an examination of the opinion in the case supra will show that it does not undertake to say what will constitute a deadly weapon within the meaning of the statute, but simply declares that “under a statute punishing one for an injury with a deadly weapon, not only the character of ¡the weapon used, but the manner of its use, is to be considered.” We think the court might have gone further, and said that the physical strength of the person using the instrument or weapon is also to be considered by the jury in determining whether it is a deadly weapon. A deadly weapon is “one dangerous to life.” A rock or club is not necessarily a deadly weapon, but may be made so in the hands of a malicious or infuriated person of ordinary strength, if used in an attack upon another with intent to take his life. It will be observed that instruction No. 4 told the jury that “any weapon” is deadly which might produce death, if used in the manner in which the club and rock were used by appellant. A bar of iron or a sledge hammer might easily produce death, if used in the maimer in which the club and rock seem to have been used by appellant; but the question to be determined by 'the jury was not whether any weapon (such as a bar of iron or other heavy instrument) might produce death if used as the club and rock were used, but whether the latter, considering their character and the manner of their use, might have produced death. We are of the opinion that the lower court should have given the instruction on this point as follows: “If the jury believe from the evidence beyond a reasonable doubt that the club and rock, or either, with which the defendant struck and wounded Gilky (if he did so strike and wound him with a club and rock, or either), *226were such, instruments as were reasonably calculated to produce death, when used by a. person of defendant®’ physical strength and in the manner in which they, or either of them, were used by him on the occasion mentioned in the indictment, they will, in that event, bei authorized to find that such club and rock, or either, are deadly weapons within the meaning of the law.”

For the error committed by the lower court in the matter of giving instruction No. 4, the judgment is reversed, and the cause remanded, with directions to that court to set aside the verdict of the jury and the judgment and sentence entered thereon, and to grant appellant a new trial in conformity to the opinion herein.

Whole court sitting.