Lee v. Commonwealth
Lee v. Commonwealth
Opinion of the Court
James Lee, upon trial under an indictment charging the offense of malicious shooting and wounding with intent to kill, and charging him with having been convicted of two previous felonies, was found guilty and a sentence of life imprisonment was imposed. Appealing, he com • plains only of error in the instructions.
The asserted errors relate to that portion of the instructions dealing with the habitual criminal aspect of the case. The first error asserted is that the instructions failed to require the jury to find that the immediate offense upon which the defendant was being tried was committed after the two previous convictions of felonies. The instructions did require the jury to find that the second offense was committed after the first conviction, but did not contain a similar requirement as to the immediate offense being committed after the second conviction.
While this was a technical error, Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 878, we do not see how the jury could have been misled, or the defendant prejudiced, since there was no dispute in the evidence as to the date of the immediate offense, and this date was well after the date of the second conviction. It is our opinion that this error does not warrant a reversal of the judgment.
In describing the previous convictions, the instructions referred to the second one as having been of “the offense of malicious striking and wounding of another, a felony.” It is claimed that error was committed here in omitting the words “with intent to kill,” since intent to kill is essential to make the offense of malicious striking and wounding a felony. KRS 435.170.
The evidence shows that the conviction referred to was of a felony, and that the sentence was five years in the penitentiary. The only fact the jury was required to find was the fact of successive convictions of previous felonies; the particular nature of the previous offenses was not important. Accordingly, we think the instructions were not required even to state what the particular previous offenses were; much less to state their elements with exactitude. It is enough that the convictions were identified as felony convictions.
The judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.