Burkhart v. Commonwealth , 119 Ky. 317 ( 1904 )

Opinion of the court by

JUDGE O’REAR

Affirming.

Appellant was indicted and tried on the felonious charge of shooting at a railroad passenger coach in which were passengers and employes at the time of the shooting. The only question made that is material is whether the instructions of the court properly submitted to the jury the matter at issue. The court told the jury that if they believed from the evidence beyond a reasonable doubt that the defendant willfully, unlawfully, maliciously, and feloniously, with a gun or pistol, shot at a railroad train in which the employes of said road and passengers were in and on said train, they should find the defendant guilty, and fix his punishment at confinement-in the penitentiary for a period not less than one nor more than five years. Section 1166, Kentucky Statutes, 1903, makes it a felony, with the punishment stated in the instruction just alluded to, for one to shoot at “a railroad passenger1 coach” on which or in which were either passengers or employes of the railroad company. That part of section 1166 pertaining to the shooting at and info any railroad passenger coach or steamboat is an amendment of -the statute approved February 26, 1894 (Acts 1894, p. 47, c. 32). There is another statute on this same subject so similar to section 1166 that jt might be doubted whether one does not in some part repeal the other, and that is section 794, found in the chapter of Kentucky Statutes of 1903, under the head of ‘'Private Corporations.” It provides that any person who shall recklessly, wantonly, or maliciously throw any stone, stick, club, or other missile at.or into, or shoot at or into, any engine of any railroad train in this State, or any car attached thereto, on or in which engine or car there may be any passenger or other person, the offender shall be deemed guilty of a misdemeanor, punishable by fine or imprisonment.

Appellant’s criticism of the instruction at bar is that it submitted to the jury only the question whether he had fired at a railroad train, without reference to whether it was or was not a railroad passenger coach, and that it thereby authorized the jury to find him guilty of a felony for an offense which was, at most, a misdemeanor.

Section 791 of the Kentucky Statutes was in effect at the time the amendment of February 20, 1891, to section 1166, was enacted. If the two are in conflict, the latter must be held to repeal the former. Manifestly it was the purpose of the Legislature to punish lu section 1166, by a very stringent law, the firing. at railroad trains carrying passengers, because of the great danger 1o human life from that practice, and the fact that those who‘were liable to be injured by it were generally utterly helpless to defend or protect themselves against such assailants. It could scarcely be possible that it was the c-oach or character of car in which the persons were that was intended to be protected by the- statute, The primary object o.f protection being the persons, it is not so material in what kind of a car they were situated at the time. Therefore if the railroad train upon which there were passengers consisted of one or more cars, whether or not they were what are known among railroad mein as passenger coaches, still they would be in fact passenger coaches, so far as the purposes of this act extended, and the firing at such train is manifestly within the mischief sought to be prevented by the statute. When such an act is done maliciously and willfully, it is a cleat* violation of section 1166. Whether a similar act, if done only recklessly or wantonly, is or is not embraced exclusively by section 794 of the statutes, is not necessary to be here decided. The fact is in this case that the train which the jury'- found that appellant fired at was exclusively a passenger train, made up of passenger coaches, in which passengers and employes of the railroad1 company were at the time riding. .There can be no sort of doubt that, if appellant is guilty at all, he is guilty under section 1166, Kentucky Statutes, 1903 — the one under which he was indicted..

The evidence for the prosecution tended to show Niat the shot was fired at the train willfully; that it was not accidental or unintentional. The train was near by, and the purpose of firing the shot under the circumstances that it was fired, being without excuse or provocation, may well have been found by the jury from these circumstances to have been done maliciously. That it was done maliciously was not only found by the jury, but was required by the court in the instruction to be ascertained as a fact before a verdict of guilty could be returned.

Perceiving no error in the record, thei judgment is affirmed.