The appellant, Earl Jones, was convicted of assault with intent to kill as denounced by KRS 435.170(2) and sentenced to three years in prison.
Numerous grounds are urged for reversal, but we shall consider only those grounds that appear in appellant's motion for new trial which have not been abandoned on appeal. They are: (1) The verdict was a result of passion and prejudice and was flagrantly against the evidence; (2) relationship of one of the jurors to the prosecuting witness; and (3) erroneous instructions.
The evidence shows without contradiction that on January 18, 1952, appellant committed a savage assault upon J. A. Runyou. According to the testimony of Mr. Runyou, appellant approached him while he was standing on the sidewalk in front of his law office, grabbed him by his coat collar and struck him in the face with some object that 'looked like steel knucks.' The blow felled Mr. Runyou. Appellant then brutally kicked him and beat him with his fists.
Appellant admits that he committed the assault but denies he used 'knucks' or any weapon. Appellant testified that he administered the beating to Runyou because his wife told him Runyou had raped her while she was in his office consulting him about a divorce action she had brought against appellant and in which Runyou was acting as her attorney. The following quoted excerpt from appellant's testimony expresses malice and his intention:
'I said, J. A., my wife, Sarah May has told me everything and I am going to give you a whipping and give you a damn good one. That is the exact words that I said. * * *. I done my very best to do what I told him I was going to do. * * *. I used my fists and I did kick him.'
Several doctors who attended Mr. Runyon following the assault testified as to the severity of Runyon's wounds.
Mr. Runyon denied that he had raped or abused appellant's wife. He testified appellant's animosity toward him had resulted from other causes.
It is evidence that the verdict is not flagrantly against the evidence, nor do we think it was a result of passion and prejudice. The appellant admits he gave Mr. Runyon a severe beating. By way of defense, he attempted to justify the assault by claiming that Runyon had provoked it. And in view of the gravity of the offense the sentence imposed upon appellant by the jury was not so severe that it strikes us to be a result of passion and prejudice.
It is next argued in behalf of appellant that the juror Carl Adkins was related by marriage to the prosecuting witness and had not disclosed that relationship when interrogated thereon during the voir dire examination. It was established that the prosecuting witness, J. A. Runyon, is a second cousin of Carl Adkins' wife. The affidavit of Carl Adkins stated that he was unaware of any relationship that existed between him and Mr. Runyou, and Adkins' wife stated in her affidavit that she was ignorant of any kinship between Mr. Runyou and her.
It appears that the relationship of the juror to the prosecuting witness is remote and that the juror was unaware of such kinship when he served on the jury. Under these circumstances we are of the opinion that the court did not abuse its discretion in denying appellant a new trial. See Horton v. Commonwealth, Ky., 240 S.W.2d 612; Reed v. Commonwealth, 273 Ky. 607, 117 S.W.2d 589, 116 A.L.R. 673; Miracle v. Commonwealth, 148 Ky. 453, 146 S.W. 1136.
Appellant further insists that the instructions were erroneous in that the jury was permitted to find that appellant's 'fee and shoes' were deadly weapons. The instructions complained of were as follows:
'Instruction I. If the jury believe from the evidence beyond a reasonable doubt that the defendant, Earl Jones, in Pike County and before the finding of the indictment herein on March 5, 1952, did willfully and maliciously assault, strike and beat J. A. Runyon with a weapon upon the head or body or both with the intent then and there to kill the said J. A. Runyon and that the weapon used by the said Earl Jones was a deadly weapon as defined in these instructions, then the jury will find the defendant guilty as charged in the ...