Shepherd v. Commonwealth

Court of Appeals of Kentucky

Shepherd v. Commonwealth

316 S.W.2d 367

DecidedSeptember 26, 1958

StatusPublished

This text of 316 S.W.2d 367 (Shepherd v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shepherd v. Commonwealth, 316 S.W.2d 367 (Ky. Ct. App. 1958).

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Opinion

MONTGOMERY, Judge.

Lloyd Shepherd was indicted for rob'bery. On the trial, he was found guilty. His punishment was fixed at twenty-one years in confinement.

The sole error urged is that the instruction embraced the wrong penalty. The penalty under the indictment charged is confinement “in the penitentiary for not less than two nor more than ten years”. KRS 433.120(1). The jury was instructed to fix ‘his punishment at confinement “for twenty- • one years or for life, or by death”, which •is the penalty under KRS 433.150, governing armed assault with intent to rob. The indictment did not contain the language ■necessary to sustain a charge under KRS 433.150.

The facts of this case are quite like those in Riley v. Commonwealth, 278 Ky. 732, 129 S.W.2d 581, wherein a penalty given under an instruction based on the armed assault statute was held to be unwarranted when the indictment charged robbery only. The Attorney General, with commendable candor, acknowledges the error.

Judgment is reversed, with directions to grant a new trial.

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MONTGOMERY, Judge.

Lloyd Shepherd was indicted for rob'bery. On the trial, he was found guilty. His punishment was fixed at twenty-one years in confinement.

The sole error urged is that the instruction embraced the wrong penalty. The penalty under the indictment charged is confinement “in the penitentiary for not less than two nor more than ten years”. KRS 433.120(1). The jury was instructed to fix ‘his punishment at confinement “for twenty- • one years or for life, or by death”, which •is the penalty under KRS 433.150, governing armed assault with intent to rob. The indictment did not contain the language ■necessary to sustain a charge under KRS 433.150.

The facts of this case are quite like those in Riley v. Commonwealth, 278 Ky. 732, 129 S.W.2d 581, wherein a penalty given under an instruction based on the armed assault statute was held to be unwarranted when the indictment charged robbery only. The Attorney General, with commendable candor, acknowledges the error.

Judgment is reversed, with directions to grant a new trial.

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Bluebook (online)

316 S.W.2d 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepherd-v-commonwealth-kyctapp-1958.

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