Decided October 13, 1925.
Appeal from Harlan Circuit Court.
JOHNSON, LYTTLE MORGAN for appellants.
FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.
Appellants were convicted of assault with intent to rob, and their punishment fixed at two years' confinement in the penitentiary.
The evidence of Arthur Arrington, the prosecuting witness, was to the effect that he was driving across the bridge near the town of Wallins when appellant, Rogers, flagged him down by waving a pistol. As he stopped. Rogers shot in front of the car through the bridge flooring. Rogers and Abner then stepped on the car with pistols drawn, and, after asking him if he had a pistol or any money, began to search his pockets. As they started to feel in 'his pockets he started the car. As appellants got off, or were thrown off, one of them fired a bullet through the windshield and another bullet through the rear casing. Later on, he told the police about it and appellants were arrested.
Henderson Webb testified that he was about forty yards away on the occasion in question, heard the racket going on, and, as the car started off pretty fast, two shots were fired.
Appellants testified that they met Arrington near the bridge. He approached them and asked them how they would swap pistols. Both Arrington and Rogers had their pistols out. While Arrington was handling Rogers' pistol it went off in the floor of the bridge. To avoid arrest all the parties got into the car and went up the pike together.
It is first insisted that the court erred in not instructing on assault and batten. It is true that a common assault and battery is a degree of the crime of assault with intent to rob, and that where the evidence authorizes it the court should instruct on assault and battery. Barnard v. Commonwealth, 94 Ky. 285, 22 S.W. 219. Here, however, the evidence for the Commonwealth is to the effect that appellants, with drawn pistols in their hands, began to search Arrington's pockets for money. On the other hand, appellants denied the assault and claimed that all the parties were merely engaged in an effort to swap pistols. Under this evidence appellants were either guilty of assault with intent to rob or were not guilty at all. Hence the court did not err in refusing to instruct on assault and battery.
Another insistence is that there is no longer in force any statute punishing the offense of robbery, and, therefore, none punishing the offense of assault with intent to rob. In support of this position we are referred to the case of Gibson v. Commonwealth, 204 Ky. 748, 265 S.W. 339, but that opinion has been withdrawn with the result that section 1159, Kentucky Statutes, is still in force. Gibson v. Commonwealth, 209 Ky. 101, 272 S.W. 43; Commonwealth v. Reagan, 209 Ky. 393, 272 S.W. 889.
The further point is made that the court erred in excluding statements and contentions made by appellants at the time of their arrest. This evidence not being in the nature of a confession or admission or declaration against interest was pure hearsay, and appellants were not entitled to bolster up their testimony on the trial by proof that they made the same statements immediately after their arrest. However, it appears that when one of appellants testified that the prosecuting witness had a pistol in his car at the time of their arrest this evidence was excluded on motion of the Commonwealth. In view of the claim of appellants that the prosecuting witness had a pistol, and that he proposed a swap of pistols when the car was stopped, the excluded evidence was material and should have been admitted. Moreover, the court should have permitted appellants to lay the foundation for impeachment by requiring the prosecuting, witness to answer whether or not he denied having a pistol. As the case depended on the credibility of the prosecuting witness, the exclusion of evidence tending to impeach him was prejudicial error.
For the reasons indicated the judgment is reversed and cause remanded for a new trial consistent with this opinion.