delivered ttib opinion oe the court.
Upon an indictment for maliciously shooting at and wounding another with a deadly weapon, with an. intention to kill such person, the appellant was found guilty of shooting and wounding in sudden heat and passion, and his punishment fixed at a fine of $500. The evidence tended to show that, after a quarrel, the defendant attacked one Jouwdy, and drew a pistol, as he claims, for the-purpose of striking Jouwdy with it; that in the scuffle the weapon was discharged, and Jouwdy was struck in the knee. The grounds for reversal relied on are;
1st. That the .second instruction as to shooting and wounding in sudden heat and passion, without previous malice, was error, because not a degree of the offense charged in the indictment, viz., Malicious shooting and wounding with intent to kill. This exact point seems to us to be decided in Tyre v. Commonwealth, 2 Met., 2, against appellant’s contention; and we think that'the question is settled by section 263 of the Criminal Code, which provides that the offenses named in each subdivision of the section shall be deemed degrees of the same offense in .the meaning of sec*383tion 262, and in the second subdivision names all injuries to the person by maiming, wounding, beating, and assaulting, whether malicious or from sudden passion, and whether done or not with the intention to kill. The offense denounced by section 1242, Kentucky Statutes, is, under this section of the Code, clearly a degree of the offense denounced by section 1166, and a conviction under the former section would bar a prosecution under the latter.
2d. The next ground urged for reversal is the admission of testimony by the prosecuting witness as to the amount and extent of his injury. We think this testimony competent, not only as tending to show the intent with which the injury was inflicted, but as proper for the jury to consider in fixing the amount of punishment.
3d. The third ground urged for reversal is,that there was-no testimony to show that appellant fired the pistol. Inasmuch as the testimony clearly showed that he drew the pistol, had hold of it, and was scuffling with Jouwdy for its possession at the time it went off, we think the .jury were warranted in concluding that he fired it.
Judgment affirmed.