
    Hemphill v. Commonwealth.
    (Decided January 29, 1918).
    Appeal from Bell Circuit Court.
    Criminal Law — Indictment and Information — Charging Two Persons with Act of Shooting and Wounding. — The fault in an indictment, that charged two persons with the single act of shooting and wounding another person with the intent to kill, was cured by the dismissal, before the trial, of the indictment as to one of the persons.
    L. F. DE BUSK and J. G. ROLLINS for appellant.
    CHARLES H. MORRIS, Attorney General, and HENRY F. TURNER, Assistant Attorney General, for appellee.
   Opinion of the Court by

Judge Carroll

Affirming.

The appellant and John Powers were charged in one indictment with unlawfully, wilfully and maliciously shooting at and wounding Edna Cooper with intent to kill her. After a demurrer to the indictment had been overruled, the case went to trial, and the jury found the appellant guilty and fixed her punishment at confinement in the state penitentiary for one year. From the judgment on this verdict she prosecutes this appeal.

It is said that the trial court committed error in not sustaining the demurrer to the indictment upon the ground that it charged two persons with the single act of shooting and wounding Edna Cooper. It would be a sufficient answer to this to say that no exception was saved to the ruling of the court. But passing this, before the trial the indictment was dismissed as to John Powers, and this dismissal certainly cured the error, if any, in the indictment.

The instructions are criticised, but we find no fault in them, nor was any error committed in admitting in rebuttal the evidence of John Powers.

The argument- that the appellant was justified in shooting, and therefore should have been acquitted, or, at any rate, punished by no more than a jail sentence under section 1242 of the Kentucky Statutes, is asking us to rule that the evidence was not sufficient to authorize the finding of the jury. This we cannot do, as there was sufficient evidence to sustain the conviction.

The judgment is affirmed.  