
    Urban v. Commonwealth.
    (Decided October 3, 1922.)
    Appeal from Boyd Circuit Court.
    1. Assault and Battery — Evidence.—Upon itbe trial of one charged with assault and battery, evidence by the prosecuting witness that a short time before the assault he, witness, had been arrested and taken .to court and there interrogated as to where he had gotten liquor, and had answered that he got it at “Lou Urban’s Place,” and 'that after his arrest he had missed some money, was competent evidence to show a motive for the assault hy a man named -Lou Urban who had theretofore run the place known as “Lera Urban’s Place” although he had some four months before ■ sold the place.
    2. Assault and Battery — New Trial. — Evidence examined and held to show such an aggravated and unprovoked assault as that a fine of one thousand dollars and six months in jail will not he held to have been such cruel and excessive ¡punishment as would justify the court in granting ¡a new trial.
    3. Assault ¡and Battery — Instructions.—Under an indictment charging one with forcibly and violently .striking, .beating and bruising another it is not necessary in the instructions to use either the words “maliciously” or “willfully.”
    4. Assault and Battery — 'Instructions.—Where the indictment charges the assault was made with a blackjack or other weapon .to the grand jury unknown, and the evidence shows that the assault was made with defendant’s fists, but at .the time he had on a ring which caused cuts and bruises on the face of the ¡person assaulted, the court did not err in instructing the jury .that defendant was guilty if he assaulted or beat Deal with 'his hands “or anything else.”
    S.S. WILLIS and R. S. DIÑELE for appellant.
    OHAS. I. DAWSON, Attorney General, and THUS. B. McGREG-OR, Assistant Attorney General, for -appellee.
   Opinion op the Court by

Turner, Commissioner—

Affirming.

Appellant was indicted in the Boyd circuit court charged with assault and battery by forcibly and violently striking, beating and bruising’ J. F. Deal with a blackjack or other weapon to the grand jurors unknown, and by striking bim with bis fists.

Upon his -trial he was found guilty and his punishment fixed at one thousand dollars fine and six months’ imprisonment in the county jail. Because of the failure of the trial court to grant him a new trial he has appealed.

His grounds for a new trial are (1) that incompetent and prejudicial evidence was -admitted against him; (2) that under the facts of the case the fine and imprisonment inflicted are unreasonable 'and excessive and therefore prohibited by section 17 of the Kentucky Constitution prohibiting excessive fines and cruel punishments; (3) that the instructions are erroneous because they do not provide for the essential requirement of wilfullness and malice and because they authorize the conviction of the defendant if he struck the prosecuting witness with his hands “or anything else,” as there was no evidence to warrant the inclusion of the last three words.

The facts are that one J. F. Deal in September, 1921, was a visitor in Ashland, Kentucky, where he had formerly resided; that while there on a visit he went to a place known as “Lou Urban’s -place” and there purchased from a man he did not know a drink of red whiskey and offered him a twenty .dollar bill in payment therefor, whereupon such person changed the twenty dollar bill and gave -him the change; he then started out of the place, and at or near the door was arrested by a policeman for drunkenness and was taken to the police court where he was interrogated about the purchase of whiskey, -and he stated -in substance that he had gotten a drink of whiskey at “Lou Urban’s place” from a man he did not know, and had gotten a twenty dollar bill changed and had placed the money so received in change in his hat and had not .since been .able to find it. It appears from the evidence that appellant Lou Urban up to four months before the occurrences narrated above had operated the soft drink stand ,at the place where Deal bought the whiskey, but at that time had sold it -out to one Weeks and had not since had -any connection whatsoever with the place.

Shortly after De'al had been so interrogated at the police court, and on the same day, he went to- the post-office, and there finding the mail -not open walked along the street near the po-s-toffiice and appellant Urban was in' his machine across the street and called Deal to him and as. soon as De'al reached there he grabbed him by the .lapel -or collar of his co-ait, -struck him with his fist and in the melee he, appellant, either got out of or was pulled out of the machine and further struck Deal some two or three blows. Appellant had on his hand a ring, a description of Which is not given, and the blows from his fist with the ring on his finger caused some cuts on the face of Deal and produced considerable blood. ' Deal was drunk at the time, and no witness in the case states that any conversation occurred between Deal and appellant before the assault was made except the appellant himself.

Deal failed to state whether there was or not any conversation, and two or 'three witnesses, who were nearby and presumably could have heard any conversation which occurred, state they heard none.

Appellant’s own evidence tends to show that Deal, who had lost his -automobile, claimed that the machine appellant was iu belonged to him (Deal) and 'that such claim was the cause of the difficulty; but the evidence for the 'Commonwealth tends to show that the assiault was a deliberate ¡and ¡aggravated ¡one ¡by ¡appelant on Deal bemuse Deal iu answering questions at the police court had connected appellant’s name with the illegal sale -of whiskey, and inferential'ly with the loss of his money.

Deal’s testimony did not in any way connect appellant with the sale of the whiskey or with the lo-ss -of his money, ¡but what be ¡said was that -he got the whiskey from -an unknown man at “Lou Urban’s place.” Urban had run the place up to four mouths before -that time and the place was known by bis name, and Deal, Avho had been aw*ay from Ashland for some time, probably knew no -other way to designate the place.

It -is urgently insisted that the evidence given on the trial that the Avitness Deal bought the whiskey at Lou Urban’s place was prejudicial to appellant because there AAras no connection shoAvn ¡between the purchase of the whiskey or -the loss of Deal’s money with the subsequent assault which happened a few hours later; but the theory of -the Commonwealth was that appellant’s assault upon Deal w-as the result of and entirely provoked by the eAddence o-r statements which Deal had made in the police court -connecting Urban’s name with the illegal sale of the Avhiskey- and inferentially with the loss of his money, and we are of opinion that the evidence was competent for the purpose of showing a -motive in appellant to make the assault, and ¡outside of -appellant’s oavu testimony there is no -other motive ¡shoAvn. It is always -essential to the Commonwealth in presenting its evidence to establish the -m!otive for the commission of a crime and thereby to give to the jury an opportunity to increase or -diminish the punishment of defendant in accordance with the motive which may -be shown.

It is apparent the jury, knowing the parties and being familiar with the situation and the -circumstances surrounding them, adopted the theory of the Common - Avealth, for if they had believed, ás testified by appellant, that Deal had cursed and abused him and charged him with stealing his automobile, they could not have returned the verdict they did.

The second 'Contention is that the fine of one thous- and dollars and imprisonment for six months assessed by the jury was cruel and excessive punishment within the meaning of section 17 of our Constitution.

Assault and battery is a common law offense and the punishment therefor is limited only by the constitutional inhibition referred to — that is to say, the jury may, within proper limits, assess any sum as a fine or fix any imprisonment, in its discretion, in the county jail, without any restriction .except such as the court may in its discretion deem to be contrary to the letter and spirit of the constitutional inhibition referred to.

The evidence for the Commonwealth showed that appellant called Deal across the street to where he was sitting in his machine, immediately grabbed him by either the lapel or collar of his coat and struck him with his fist; that Deal was .at the time drunk and appellant, in some way not made quite clear, was either pulled out of or got out of his machine and assaulted Deal and struck him in the face with his fist 'and knocked him down; that he'had on one of his fingers a ring which made cuts and bruises on the face of Deal and produced a good deal of blood. Accepting, therefore, the theory of the Commonwealth in the case, which the jury was authorized' to do, the assault hy appellant was unprovoked and wholly unjustified, and we are unwilling to-say that under the facts in evidence there y^as such cruel and inhuman punishment inflicted as would have justified the court in granting him a new trial.

The jury, and presumably the judge, knew these parties, knew the witnesses and knew the circumstances leading up to this assault, and were better enabled to pass upon these questions than is this court.

An analysis of the evidence in -this case does not bring it within the class which at first blush appears to have beeu induced by passion Or prejudice.

The indictment charges appellant with forcibly and violently striking, heating and bruising Deal and the instructions authorize a conviction of appellant without using the words “maliciously” or “wilfully,” hut the instruction does authorize an acquittal of appellant if Deal on that occasion began tbe difficulty by laying hands on appellant in a menacing or angry way or manner, or if appellant in his necessary or reasonably apparent necessary self-defense and in order to avert the danger, real or apparent, ito himself struck Deal with his hands.

We do not understand that >an assault must be maliciously or wilfully made; on ¡the contrary, an assault, even an aggravated assault, may be made upon the spur of the momenit, without previous malice and without previous purpose sio to do.

The indictment 'charges that the assault was made with a blackjack or other weapon to the grond jury unknown, hut the evidence shows that the assault was made with appellant’s fists, but that at the time of the assault he had on one of his fingers a. ring which caused cuts and bruises on the face of Deal; and we therefore fail to see wherein the count erred to appellant’s prejudice by instructing the jury that if ,appellant assaulted or heat Deal with his hands or “anything else” not in his necessary self-defense they should find him guilty, could have been prejudicial. On the whole case we see no error prejudicial to appellant’s substantial rights and the judgment is, therefore, affirmed.  