Opinion
September 26, 1958.
Appeal from the Circuit Court, Estill County, E.B. Beatty, J.
S.H. Rice, Irvine, for appellant.
Jo M. Ferguson, Atty. Gen., David B. Sebree, Asst. Atty. Gen., for appellee.
Lloyd Shepherd was indicted for robbery. On the trial, he was found guilty. His punishment was fixed at twenty-one years in confinement.
The sole error urged is that the instruction embraced the wrong penalty. The penalty under the indictment charged is confinement "in the penitentiary for not less than two nor more than ten years". KRS 433.120(1). The jury was instructed to fix his punishment at confinement "for twenty-one years or for life, or by death", which is the penalty under KRS 433.150, governing armed assault with intent to rob. The indictment did not contain the language necessary to sustain a charge under KRS 433.150.
The facts of this case are quite like those in Riley v. Commonwealth, 278 Ky. 732, 129 S.W.2d 581, wherein a penalty given under an instruction based on the armed assault statute was held to be unwarranted when the indictment charged robbery only. The Attorney General, with commendable candor, acknowledges the error.
Judgment is reversed, with directions to grant a new trial.