PRINCIPAL OFFICERS OF THE STATE OF KENTUCKY AT THE TIME OF THE PUBLICATION OF THIS VOLUME. BERIAH MAGOFFIN, GOVERNOR. THOMAS B. MONROE, JR., SECRETARY OF STATE. JAMES H. GARRARD, TREASURER. THOMAS J. FRAZIER, REGISTER OF THE LAND OFFICE. ROBERT RICHARDSON, SUPERINTENDENT PUBLIC INSTRUCTION. JAMES P. BATES, PRESIDENT BOARD OF INTERNAL IMPROVEMENT. JUDGES OF THE CIRCUIT COURTS IN KENTUCKY IN COMMISSION AT THE PUBLICATION OF THIS VOLUME. 1st District-Hon. RUFUS K. WILLIAMS, Graves county. 2d District Hon. THOMAS C. DABNEY, Trigg county. 3d District-Hon. JAMES STUART, Meade county. 4th District-Hon. ASHER W. GRAHAM, Warren county. 5th District-Hon. G. W. KAVANAUGH, Marion county. 6th District-Hon. THOS. E. BRAMLETTE, Adair county. 7th District-Hon. PETER B. MUIR, Jefferson county. 8th District-Hon. ELIJAH F. NUTTALL, Henry county. 9th District-Hon. SAMUEL M. MOORE, Kenton county. 10th District Hon. E. C. PHISTER, Mason county. 11th District-Hon. WILLIAM H. BURNS, Morgan county. 12th District-Hon. GRANVILLE PEARLE, Laurel county. 13th District Hon. WM. C. GOODLOE, Madison county. 14th District-Hon. JOHN E. COOKE, Hopkins county. Chancellor of Louisville Chancery Court-Hon. C. W. LOGAN, Louisville. Chancellor and Criminal Judge of the First District—Hon. J. M. BIGGER, McCracken county. Chancellor and Criminal Judge of the Fourth District-Hon. CHARLES GREEN, Simpson county. JUDGES AND OFFICERS OF THE COURT OF APPEALS. HON. JAMES SIMPSON, CHIEF JUSTICE. HON. HENRY J. STITES, HON. ALVIN DUVALL, HON. HENRY C. WOOD, JUDGES. ANDREW J. JAMES, ATTORNEY GENERAL. RULE ADOPTED JUNE 16, 1860. It is ordered that the following be made a rule of practice in this court: The clerk of this court shall not hereafter place any appeal upon the docket until a complete transcript of the record in the case in which the appeal is granted shall be filed in his office. DECISIONS OF THE COURT OF APPEALS OF KENTUCKY. SUMMER TERM, 1859. CASE 1-INDICTMENT-JUNE 7. Tyra vs. Commonwealth. APPEAL FROM ESTILL CIRCUIT COURT. 1. In a trial for misdemeanor, the defendant may consent to be tried by less than twelve jurors. (1 Met., 365.) 2. If a case of felony cannot, by consent of the accused and the Commonwealth's attorney, be tried by eleven jurors, the error is not such as, according to section 334 of the Criminal Code, to authorize the court of appeals to reverse the judgment of conviction, especially when no such objection was made in the circuit court. 3. Drunkenness, or the temporary insanity occasioned by the act of the defendant in getting drunk, constitutes no justification or excuse for the commission of crime. 4. An intent to kill is not made an ingredient in the offense of stabbing described in the 1st section of art. 17, Revised Statutes, p. 264; and the omission of the words "in sudden heat and passion," in an instruction to the jury, was not to the prejudice of the defendant. 5. Upon an indictment for malicious stabbing, with intent to kill, the defendant may be found guilty either of the felony charged or of any lower degree of that offense. (Criminal Code, sections 258, 259.) After the jury were sworn, and had heard a portion of the testimony, they were adjourned until the next morning, when one of them failed to attend; "and," as the record recites, "by consent of the attorney for the Commonwealth and the prisoner, they agreeing that the remaining eleven jurors might try this cause," &c. The verdict was: "We of the jury find 2me 1 f102 382 Tyra vs. Commonwealth. the defendant guilty of stabbing in sudden heat and passion, and not in self-defense, and assess his punishment to fifty dollars fine and six months' confinement in the county jail." The remaining facts sufficiently appear in the opinion of the court. SQUIRE TURNER, for appellant, cited 1 Russell on Crimes, 7th American, from 3d London edition, p. 8; Prof. Mittermaier's Treatise on the effect of Drunkenness upon Criminal Responsibility, secs. 6, 7, 8, 9; Revised Statutes, sec. 1 of art. 17, p. 264; Ib., sec. 2, art. 6, p. 251; Bacon's Abridgment, Title Statute, Letter I; 18 B. Monroe, 287. As to the effect of the trial by less than twelve jurors, case in New York of Cousemi vs. the Commonwealth. J. HARLAN, Attorney General, for Commonwealth. JUDGE DUVALL DELIVERED THE OPINION OF THE COURT: Neither of the objections taken to the judgment in this case can prevail. 1. In the case of Murphy vs. Commonwealth, (1 Met., 365,) it was decided that in a trial for misdemeanor the defendant may consent to be tried by less than twelve jurors, whatever might be the rule in cases of felony. The indictment in this case charged that the defendant maliciously stabbed Arven, with the intent to kill him. Upon this indictment the defendant, under section. 258 of the Criminal Code, might have been found guilty, either of the felony as charged, or of any lower degree of that offense. He was found guilty of one of the lower degrees of that offense, which was a misdemeanor only; and, therefore, the rule contended for would not properly apply to this case under the decision referred to. But if, as contended, the record presents a case of felony, and not of misdemeanor, it follows that, according to section 334 of the Criminal Code, the error complained of is not such as to authorize this court to reverse the judgment of conviction, especially as no such objection was made in the court below. 2. The second instruction given to the jury by the court, to the effect that drunkenness, or the temporary insanity occasioned by the act of the defendant in getting drunk, constituted no justification or excuse for the commission of crime, was, we |