Appeal from Circuit Court, Knox County
Clark Vs. Commonwealth
ACTION: Affirmed
DATE FILED: Oct. 26, 1951

Alvanus Clark was convicted in the Circuit Court, Knox County, J. B. Johnson, J., for malicious shooting and wounding with intent to kill and he appealed. The Court of Appeals, Latimer, J., held that the offense of malicious shooting and wounding with intent to kill was not an offense so separate and distinct that a conviction therefor could not be upheld under indictment for murder where Commonwealth failed to prove corpus delicti on murder charge. Affirmed.

LATIMER, Justice.
Appellant was indicted and tried for the murder of William Bryson. He was convicted for malicious shooting and wounding with intent to kill and given a sentence of two years. The Commonwealth failed to prove the death of Bryson. The chief question presented here is whether or not the offense of malicious shooting and wounding with intent to kill is an offense so separate and distinct that a conviction therefor cannot be upheld under an indictment for murder where the Commonwealth fails to prove the corpus delicti on the murder charge.

The evidence is conflicting as to the circumstances surrounding the shooting, which apparently grew out of some grudge or bad feeling existing between appellant and Bryson. We shall not concern ourselves so much with this conflicting evidence as the jury was the sole judge of the facts.

It appears that immediately after the shooting Bryson was taken in an ambulance to Knoxville. The Commonwealth closed its case without proving Bryson died from this gunshot wound. It is conceded by the Commonwealth that the corpus delicti was not proven and that the charge of murder must, therefore, fall. The trial court, consequently, did not instruct on murder or manslaughter but did give an instruction on malicious shooting and wounding with intent to kill.

Appellant made motion for a directed verdict properly challenging the sufficiency of the evidence to convict for malicious shooting and wounding with intent to kill under an indictment for murder.

The appellant was given only a sentence of two years. Had the Commonwealth proven death as a result of the shooting, this evidence could easily have supported a conviction of murder. We find no substantial error.

The judgment is affirmed



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