Barnard v. Commonwealth, Laurel, 1893

Previously:

Click here for a list of my other Pulaski/Rockcastle/Laurel County KY articles

-----------

[April 29, 1893] -

Barnard v. Commonwealth.

COURT OF APPEALS OF KENTUCKY

94 Ky. 285; 22 S.W. 219; 1893 Ky. LEXIS 44

April 29, 1893, Decided

PRIOR HISTORY:  [**1]  APPEAL FROM LAUREL CIRCUIT COURT.

DISPOSITION: Reversed and remanded for a new trial.

COUNSEL: WM. H. HOLT FOR APPELLANT.

The court should have instructed the jury as to the offense of assault and battery, that offense being included in the one charged in the indictment. (Criminal Code, secs. 262, 264.)

W. J. HENDRICK, ATTORNEY-GENERAL, FOR APPELLEE.

Under the Code of Practice, the offense of assault and battery is not a degree of the offense of assault with intent to rob. (Criminal Code. sec. 265.)

JUDGES: CHIEF JUSTICE BENNETT.

OPINION BY: BENNETT

OPINION

 [*285]  CHIEF JUSTICE BENNETT DELIVERED THE OPINION OF THE COURT.

The appellant Barnard was indicted, tried and convicted of the crime of assaulting Patrick D. Casey with intent to rob him. The court, upon the trial of the case, instructed the jury correctly as to the crime of an "assault with intent to rob;" but the appellant contends as the offense of a common assault and battery, a mere breach of the peace, is a degree of the crime of an "assault with intent to rob," and is included in that charge, that the court, the evidence authorizing it, should have instructed the jury that they might find him guilty of the misdemeanor. There [**2]  was some evidence before the jury that tended to show that the offense of the appellant was that of a common assault and battery only. Therefore, the question is, should the court have given an instruction  [*286]  authorizing the jury to find the appellant guilty of that offense only?

Section 264, Criminal Code, seems to settle that question: "If an offense be charged in an indictment to have been committed with particular circumstances as to time, place, person, property, value, motive or intention, the offense without the circumstances, or with part only, is included in the offense, although that charged may be a felony, and the offense, without the circumstances, a misdemeanor only."

Here the crime of assaulting with intent to rob can not be made out without establishing an assault or assault and battery with such intent; and if the assault is committed without the additional circumstance of an intention to rob, then the assault is but a mere misdemeanor. But the intent to rob, and a conviction for it, absorbs the misdemeanor into the higher crime of felony; so likewise the higher crime of murder absorbs the offense of the mere assault and battery. But if the murder be not [**3]  established, the party may be punished for the assault and battery, and if the person was not convicted of the assault with intent to rob, but committed a common assault and battery, he may be found guilty of misdemeanor, because it is but a degree of the crime of assault with intent to rob.

As the case must be remanded for a new trial, we will make no remarks upon the evidence further than indicated.

The judgment is reversed, and the cause is remanded for a new trial. [1]


---

[May 2, 1893] -

The case against James Barnard, who was accused of beating up and robbing Pat Casey, has been reversed by the court of appeals.  Barnard was convicted at the last circuit court and given one year in the penitentiary. [2]





-------------------------

[1] Barnard v. Commonwealth, 94 Ky. 285, 22 S.W. 219 (1893).

[2] Excerpt from "London, Laurel County." Semi-Weekly Interior Journal, Stanford, KY. May 2, 1893. Page 1. LOC. http://chroniclingamerica.loc.gov/lccn/sn85052020/1893-05-02/ed-1/seq-1/

.