Affirming.
This is an appeal from a judgment of the Harlan circuit court, convicting appellant of malicious shooting and wounding with intent to kill, and fixing his punishment at five years' imprisonment.
The evidence for the commonwealth discloses that appellant had been arrested on a charge of housebreaking, and was in the custody of Arthur Hensley, a deputy sheriff of Harlan county. When they were nearly to Layman, appellant suddenly wheeled, threw a .38 pistol in the face of Hensley, and said: "Stick your hands up." He then fired several shots, one of which struck Hensley and broke his thigh. According to appellant, he looked back, and, seeing Hensley draw his pistol, he jerked his pistol out of his bosom and shot Hensley to protect himself.
The only ground urged for a reversal is that the instruction authorizing the conviction contained the following: "And fix his punishment in the state reformatory for a period of not less than five years to the discretion *Page 573 of the jury." Though the instruction was certified in this form in the bill of exceptions first filed, an investigation discloses that in the original bill on file in the Harlan circuit clerk's office the instruction read as follows: "And fix his punishment in the state reformatory for a period of not less than one nor more than five years in the discretion of the jury," and was incorrectly copied by the clerk. Thereupon an order was entered by the Harlan circuit court, reciting the mistake by the clerk and directing the clerk to make a true and correct copy of the original bill and certify same to this court. To this order counsel for appellant agreed.
As the instruction actually given and set forth in the original bill of exceptions filed in the lower court is correct, it follows that appellant's complaint thereof is without merit.
Judgment affirmed.