
    Case 33 — George Oliver, was Convicted of tiie Offense of Maliciously Cutting and Wounding Another with Intent to Kill and He Appeals.
    May 1.
    Oliver v. Commonwealth.
    APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.
    Defendant Appeals.
    Affirmed.
    Criminal Daw — Increased Penalty on Second Conviction — Sufficiency of Indictment — Verdict.
    Held: 1. Where an indictment for a felony charged that in a certain court on a certain day defendant was indicted for the crime of maliciously shooting at and wounding another, “with inte” a felony punishable under the laws of the iState of Kentucky by confinement in the penitentiary, and that on a certain day he was found guilty of that offense by the verdict of a jury, and his punishment- fixed at confinement in the State penitentiary for the term of five -years, and that afterwards on a certain day judgment was rendered upon that verdict, and that the verdict and judgment are still in force, the number and style of the case being given, it sufficiently appeared from the indictment that defendant had previously been convicted of a felony, and the case in which the conviction took place was sufficiently identified, though the full statutory name of the offense was not given.
    2. As the court instructed the jury that it should fix defendant’s term of confinement at ten years years only in the event they found that he had been previously convicted of a felony as charged in the indictment,” a verdict finding “the defendant guilty as charged in the indictment,” and fixing “his punishment at ten years in the penitentiary,” was a sufficient finding of the previous conviction to- authorize the increased penalty, though the statute provides that “judgment in such cases shall not be given for the increased penalty unless the jury shall find, from record and other competent evidence, -the fact of former convictions for felons’-.”
    WALTER DARBY, attorney for apfellant.
    This appeal is prosecuted for review of the two following points:
    1. The demurrer to the second count of the indictment which sought to charge a previous conviction for a felony. It is alleged in this count that the defendant had beein indicted and ■convicted in the Jefferson circuit court of the offense of “malicious cutting and wounding with inte,” and this is the only description upon the face -of this indictment. It does not describe the offense of maliciously cutting and wounding another with intent to kill him, which offense is stated, however, in an indictment that was brought forward in evidence at the trial, over the objection of the defendant.
    The statute allowing this increased penalty, although it has been held to be constitutional, is one of the exceptional provisions of the law, which, above all things, requires to be pleaded and proved with absolute strictness and certainty. Upon the principle that all ambiguities of pleading are resolved against the pleader, the demurrer- to this count ought to have been sustained.
    2. The verdict of the jury is void. “We, the jury, find the defendant guilty as charged in the indictment, and fix his punishment at ten years in the penitentiary.” The maximum punishment for malicious cutting is five years imprisonment. This is not a lawful verdict, for the jury does not find the fact of a previous conviction. Kentucky Statutes, sec. 1130; Chenowith v Com., 11 R., 561; Rector v. Com., 80 Ky., 468.
    CLIFTON J. PRATT, attorney genebal, fob commonwealth.
    
      First, The Demurrer.,
    
    It is not claimed by appellant’s counsel that the indictment is wanting in any essential averments, except the failure to set out in a certain and definite way the previous offense. The words “to kill” are omitted in setting out the previous offense. It has been held that “An indictment for a second offense must contain allegations sufficient to show the time, court or county in which the former judgment was rendered, and that the court before which the conviction for the first offense took place, had jurisdiction therein.” Am. & Eng Enc. of Law, vol 10, page 569.
    There was enough stated without the omitted words to show the offense which had been previously committed, and appellant had ample notice to enable him to prepare his defense.
    
      Second, The Verdict.
    
    The jury in this case did not say in apt words that the appellant had been previously convicted of a felony. The record of the first trial shows that the appellant was adjudged guilty of willful and malicious cutting with intent to kill and his punishment fixed at five years in the State penitentiary. The verdict in the last trial fixes his punishment at ten years and by so doing the jury substantially said he had been previously convicted. -Stewart v. Com., 2 R., 396; Bishop Crim. Law, vol. 1, sec. 961; Kentucky Statutes, sec. 1166, 1130; A. & E. Ency. Law, vol. 10, page 569.
   Opinion of the court by

JXJDG-E HOBSON

Aeeibmins.

Appellant was indicted by the Jefferson circuit court for the crime of maliciously- cutting and wounding Sallie Thomas with intent to kill, and it was charged in the indictment that he had previously f been tri-ed for the crime of malicious shooting, and had been convicted, and his punishment fixed at confinement in the penitentiary for five years. The jury returned the following verdict: “We, the jury, find the defendant guilty as charged in the indictment, and fix his punishment at ten years in the penitentiary.” The court entered judgment on the verdict. Appellant insists that the indictment is insufficient to sustain the verdict or to warrant a conviction for twice the time of the first sentence, and that the verdict is insufficient under the statute. The part of the indictment which refers to the previous conviction is in these words: “The grand jurors of the county of Jefferson, in the name and by the authority of the Commonwealth of Kentucky, accuse George- Oliver, alias George Glass, further, and say that the said George Oliver, alias George Glass, was in the Jefferson circuit court of Jefferson county, Kentucky, at its October term, A. D. 1802, to-wit, on the láth day of October, A. I). 1802, indicted by the grand jurors of said county of the crime of maliciously shooting at and wounding another with inte, a felony punishable under the laws of the State of Kentucky by confinement in the penitentiary; and at the February term of said court, to-wit, on the 14th day of February, A. • D. 1893, was found guilty of said offense by the verdict of a jury duly impaneled in and sworn by said court to try said cause, and by the verdict of said jui’y his punishment was fixed at confinement in the State penitentiary for the term of five' years; and afterwards, to-wit, on the lltli day of March, 1893, the judgment of said court was rendered upon said .verdict, whereby said Oliver, alias Glass, was sentenced to confinement in the State penitentiary in the State of Kentucky at hard labor for a period of five years; which said verdict of the jury and judgment of said court aforesaid thereupon became and has ever since been in full force and effect, and has not been, and is not, vacated, modified, set aside, or appealed from, as will fully appear from the record of said! case in the office of the clerk of said court and filed herewith, and numbered 15839, and styled the Commonwealth of Kentucy v. George Glass, alias George Johnson; and said George Glass, alias George Johnson, is the same person as the accused herein, George Oliver, alias George Glass,— contrary to the form of the statute in such cases made and provided, and against the peace and dignity .of the Commonwealth of Kentucky.”

Section 122, Cr. Code Prac., requires. an indictment to state the facts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended, •and with such degree of certainty as to enable the court to pronounce judgment on conviction according to the- right of the case. The previous conviction is sufficiently identified to comply with this rule. The court, the time when the indictment was returned, the date of the trial and the date of the judgment, as well as the number of the action and its style, are particularly set out. This identified the case in which the conviction took place, so that the defendant could not be misled. If we disregard entirely the words “with inte,” we have left the statement that he was indicted for Khe crime of malicious shooting at and wounding another,” and that he was convicted by ihe jury and sentenced by the court to confinement in; the State penitentiary for a period of five years, and that the verdict and judgment, are in full force and effect. By section 1127, Kentucky Statutes, offenses that are punishable with confinement in the penitentiary are felonies. It thus appears that appellant was convicted of a felony. Besides, the crime punished by section 1166, Kentucky Statutes, is frequently designated as malicious .shooting or wounding, and such a designation would be sufficient to apprise the defendant of wiiat was meant, when taken in connection with the other facts stated. The case of Herndon v. Com., 105 Ky., 197 (20 R., 1114) (48 S. W., 989) seems conclusive as to the sufficiency of the verdict. There this court said in a case like this: “The only other objection made that need be noticed relates to the form of the verdict. It is insisted that the verdict is not sufficient under the statute to sustain the judgment. The statute is as follows: 'Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty unless the jury shall find, from record and other competent evidence, the fact of former convictions for felony committed by the prisoner in or out of this State.’ The court below1 instructed the jury that if they found the defendant guilty of malicious shooting they should fix his punishment at confinement in the penitentiary for not less than one nor more than five years, unless they also found that he had been twice previously convicted of felony, as alleged in the indictment; in which case, if they found him guilty, they should fix his punishment at confinement in the penitentiary for life. Under 'these instructions the jury returned this verdict: ‘We, the jury, find the defendant; Ben Herndon, guilty as charged in the indictment, and fix his punishment at confinement in the penitentiary for life.’ It is insisted that, under the statute the jury should find the fact of tiie former convictions, and that this verdict1 is not sufficient in this respect. But under the instructions of the court, the jury could not have found their verdict returned this verdict- ‘We, the jury, find the defendant, ant guilty as charged in the indictment, and fixing his punishment at confinement in the penitentiary for life, was, in effect, under the intruetions, a finding of the former convictions. The purpose of the statute was to guaranty to the defendant a trial by jury on this question, and this appellant has had. There was no doubt of the two previous convictions. Under the evidence the jury could not have found otherwise, and we do not think the defendant’s substantial rights have been prejudiced.”

Judgment affirmed.  