
    CASE 2 —INDICTMENT—
    JUNE 4.
    Commonwealth vs. Howard.
    APPEAL FROM WARREN EQUITY AND CRIMINAL COURT.
    Under an indictment charging that the defendant carried “concealed deadly weapons, to-wit, a bowie lcnife,' and also a dirk or dagger," it is notnecessasy, in order to conviction, to prove that he carried both a bowie knife and-a dirk or dagger. Proof that ho carried either is sufficient — there being no particularity in the description of either weapon in the indictment, and consequently no failure of proof in that respect.
    A. J. James, Attorney General, for Commowealth.
   JUDGrE DUVALL

delivered the opinion of the court :

The indictment charges that the defendant carried “concealed deadly weapons, to-wit, a bowie knife, and also a dirk or dagger.”

Upon the trial, there was evidence conducing to show that the defendant had carried concealed about his person a bowie knife, but there was no proof of his having carried any other weapon.

The court below, at the instance of the defendant, instructed the jury, that, “as the indictment charges facts and circumstances with more particularity than the law requires, to-wit, the carrying concealed a bowie knife and a dirk or dagger, if the jury believe, from the testimony, that the Commonwealth has failed to prove that defendant carried both a bowie knife and a dirk or dagger, and they believe he only carried concealed one deadly weapon,” they must find for him.

There was 'a verdict and judgment of acquittal, and the Commonwealth has appealed, insisting that the court below erred in giving this instruction.

In the case of Clark vs. Commonwealth, (16 B. Mon., 211,) the the defendant was charged with having in his possession a specified number of bank-notes, which were ■particularly described in the indictment. The proof showed that the defendant had in his possession counterfeit bank-notes, but there was a total failure of evidence as to the description set out in the indictment. And it was held that although such description was not necessary to the prosecution, it was neither impertinent or foreign, and having been alleged, it devolved on the Commonwealth to prove “that the defendant had a bill or bills of the description and denomination stated, with intent to pass the same.” But was it necessary that the Commonwealth should have proved the possession by the defendant of the exact number of the bills as stated in the indictment? On the contrary, it is expressly decided that proof of the possession of a single one of either of the several classes of bills as described in the indict-. ment would have authorized a conviction, although the number stated was over one hundred, and purporting to be the notes of four or five different banks.

There is nothing in the subsequent case of the Commonwealth vs. Magowan, (1 Met. Ky. Rep., 368,) which can be regarded as essentially modifying or extending the principle.

Here the defendant is charged to have carried deadly weapons of different kinds — a bowie knife, and a dirk or dagger. There is no particularity in the description of either weapon,' and consequently no failure of proof in that respect. Yet the jury were told, in effect, that the failure on the part of the Commonwealth to prove that the defendant carried both a bowie knife and a dirk or dagger, entitled him to an acquittal.

The instruction was erroneous. It is in conflict with the well settled and long established principles of the criminal law, and is certainly not sustained by the decision on which it seems to have been founded.

The judgment is therefore reversed, and the cause remanded for a new trial and further proceedings in conformity with this opinion.  