31 Ky.L.Rptr. 827
Court of Appeals of Kentucky.
HELTON v. COMMONWEALTH.
Sept. 19, 1907.
ACTION: Affirmed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Robert Helton was convicted of shooting at random on a public highway, and he appeals.

BARKER, J.
The appellant, Robert Helton, was convicted in the Knox circuit court of shooting at random on a public highway, and his punishment fixed by a fine of $75 and 10 days' confinement in jail. Upon the trial the commonwealth showed by two witnesses, Barbara Black and Rachel Cheek, that some one, whom they thought to be Robert Helton, when on the public road just opposite their house, fired his pistol four times. It was dusk, and they were not sure of the identity of the appellant; but they thought it was he. They further testified that in a trial theretofore had of the same question in the quarterly court of Knox county the appellant had testified that he did the firing which they described. In his own behalf the appellant testified that, as he was riding along the road, a dog ran before him, frightening his mule, and that he fired the shots complained of at the dog. This was substantially all the evidence adduced on the trial.

The court instructed the jury as follows:

(1) If you shall believe from the evidence beyond a reasonable doubt that the defendant, Robert Helton, in this county and within 12 months before the finding of this warrant herein, willfully fired off a gun or pistol on the public highway at the time and place mentioned in evidence, at random--that is to say, carelessly and recklessly, without firing at a definite object, with reasonable care in pointing his weapon--then you shall find the defendant guilty as charged in the warrant, and fix his punishment at a fine of not less than $50 and not more than $100, or at confinement in the county jail not less than 10 and not more than 50 days, or you may both fine and imprison the defendant, within the above limits, according to the proof.

(2) If you shall believe from the evidence that the defendant, at the time of the shooting, if he did shoot, fired his pistol in good faith at a dog, then you should find the defendant not guilty.

(3) If you shall have a reasonable doubt from the evidence of the defendant having been proven guilty, you will find him not guilty."

The jury were the sole judges of the credibility of the witnesses, and they had a right to reject or disbelieve the statement of appellant that he deliberately shot at a dog, and did not fire at random; and therefore we do not feel authorized to say that the evidence brought this case within the pale of Commonwealth, where it was held that one shooting deliberately at a dog, or at a mark, on the highway, is not guilty of shooting at random. The instructions of the court seem to us to state fully and aptly the law governing the question at issue. Several technical questions are urged by appellant, and, while we have considered them, we shall not notice them further, as they are deemed without merit.

Judgment affirmed.

Ky.App. 1907.

HELTON v. COMMONWEALTH.

104 S.W. 255, 31 Ky.L.Rptr. 827



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