October 10, 2012

Smallwood v. Commonwealth, Laurel, 1896-1897



Court of Appeals of Kentucky.

SMALLWOOD
v.
COMMONWEALTH.

Jan. 21, 1896.

Appeal from circuit court, Laurel county.

“Not to be officially reported.”

Ed Smallwood was convicted of cutting and wounding with a deadly weapon, and appeals. Reversed.

*822 H. C. Eversole, for appellant.

W. J. Hendrick, for the Commonwealth.

LEWIS, J.

Appellant was indicted for the offense of willfully and maliciously cutting, bruising, and wounding Sadie Hughs with a deadly weapon, with intention to kill her. The weapon charged to have been used was a pistol, but it was used, not in shooting, but striking her on the head, inflicting a scalp wound. The evidence is not at all satisfactory that he intended to kill her, and is, besides, conflicting and uncertain whether he struck her in self–defense. But, the jury having passed upon these two questions of fact, we are without power to reverse for a supposed error in their finding.

According to the admission of the prosecuting witness, Sadie Hughs, and also direct testimony of Mrs. Whitaker, the former went voluntarily to the residence of the latter, where a fight occurred between the two women, in which Mrs. Hughs, in trying to hit Mrs.Whitaker with a scrub broom, struck and wounded her daughter, four or five years old. That occurrence was related to appellant directly after he came from the coal mine where he was working, and he immediately proceeded to the house of Sadie Hughs, accompanied by her husband and his own son, where the striking and wounding with which he is charged were done by him. Attorney for the commonwealth objected to testimony of both Mrs. Hughes and Mrs. Whitaker; and his objection was so far sustained as that, according to ruling of court in hearing of the jury, it was to be considered and treated as competent only to show an excuse on the part of appellant for going to the house of Sadie Hughs. Strictly and really, he had no legal excuse for going to the house; and, as the jury could not have reasonably concluded he had any, the testimony, as interpreted by the court, was worthless to appellant. But as Mrs. Whitaker was the daughter, and the injured girl his granddaughter, the information given to appellant in regard to what had occurred was calculated to produce sudden heat and passion; and, if he was thereby influenced to go to the house of Sadie Hughs, the jury might well have found him guilty of a misdemeanor only, instead of finding him guilty of a felony, and fixing his punishment in the penitentiary for two years, as was done. The court ought, therefore, to have admitted the testimony, and directed the jury to consider it in determining whether he went to the house of Sadie Hughs in a state of excitement, induced by information of what had occurred at the house of his daughter, and whether he did the alleged striking and wounding in sudden heat and passion. It also seems to us it was the province of the jury to determine whether the pistol was, in the manner it was used, a deadly weapon; and it was improper for the court to assume it was, as appears to have been done in one of the instructions. For the errors indicated the judgment is reversed, and cause remanded for a new trial consistent with this opinion. [1]

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Court of Appeals of Kentucky.

SMALLWOOD
v.
COMMONWEALTH.

April 17, 1897.

Appeal from circuit court, Laurel county.

“Not to be officially reported.”

Ed. Smallwood appeals from a conviction of willfully and maliciously striking another with a deadly weapon. Affirmed.

An instruction authorizing the jury to convict if they believed defendant willfully struck another “with a pistol that was a deadly weapon, or calculated to produce death when used in the way and manner same was used,” properly left the jury to determine whether the pistol was a deadly weapon when used as defendant used it.

*248 H. C. Eversole, James Sparks, and A. L. Reid, for appellant.

W. S. Taylor, for the Commonwealth.

PAYNTER, J.

A reversal is asked because it is claimed that the court told the jury that the pistol used in making the assault was a deadly weapon. The court, in instruction No. 1, submitted to the jury the question whether the defendant “unlawfully, willfully, and maliciously cut, struck, or bruised and wounded Sadie Hughes with a pistol that was a deadly weapon, or calculated to produce death when used in the way and manner same was used,” etc. We do not understand from the language used in the instruction that the court told the jury that the pistol was a deadly weapon. The language “or calculated to produce death when used in the way and manner same was used” indicates that the court intended to, and did, tell the jury that they were authorized to consider the way and manner in which defendant used the pistol in making the assault, in order to determine whether or not it was a deadly weapon. While the instruction was not as aptly drawn as it might have been, yet we cannot see that from the language used the jury did not or could not understand that they were the judges of the question as to whether it was a deadly weapon. If, from the manner in which it was used in making the assault, it was liable to produce death, certainly the court did not err in submitting to the jury the question as to whether theweapon, when used in the way and manner the same was used in the way and manner the same was used by the defendant, was calculated to produce death. If such use of it was “calculated” to produce death, it necessarily follows it was a deadly weapon, in the meaning of the statute. The word “calculated” was used as synonymous with the words “fitted,” “adapted,” or “suited.” The judgment is affirmed. [2]


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[1] Smallwood v. Commonwealth, 17 Ky.L.Rptr. 1134, 33 S.W. 822 (1896).

[2] Smallwood v. Commonwealth, 19 Ky.L.Rptr. 344, 40 S.W. 248 (1897).

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