193 Ky. 663 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
The indictment in this case accuses appellant, Rush Anderson, and three other men of the crime of robbery, committed by going to the home of Tilden J ones in Daviess county on the night of January 1,1921, and, after covering Jones with a pistol and flashlight, requiring him to stand back while they entered his cellar and took therefrom, against his will, twelve cases of bottled in bond whiskey. Appellant Anderson pleaded not guilty to the indictment, and on trial testified that he was not present at the- time of the robbery, but that he later in the night met the real culprits who invited him to take a ride in their automobile in which the whiskey was carried, and that he entered said automobile and was riding with them before he knew of the robbery, or that the stolen whiskey was being carried in the car. He was found guilty by the jury and his punishment fixed at three years ’ confinement in the state penitentiary. From a judgment entered on that verdict he appeals to this court for a reversal of the judgment, assigning the six following reasons :
(1) The court erred in instruction No. 1 on the subject of aiding and abetting the commission of the crime of robbery.
(2) The court erred in the second instruction on the subject of grand larceny.
(3) The court erred in its instruction No. 4 on the subject of accomplices.
(4) The court failed to instruct the jury on the whole law of the case.
(5) The court erred in rejecting competent, material evidence offered by appellant.
(6) The court erred in overruling appellant’s motion for a directed verdict in his favor at the conclusion of the evidence for the Commonwealth.
2. The second instruction is subject to the same criticism as the first, but, if erroneous, was not prejudicial to the rights of appellant Anderson.
3. The fourth instruction, of which complaint is made, reads as follows:
“A conviction can not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.”
The ground of objection to this instruction is that it presupposes that but one accomplice testified against appellant. Prom the evidence we are of the opinion "that but one accomplice, Elbert Cranor, testified against appellant Anderson. He contends, however, that Berry Tichenor was also ah accomplice. Tichenor was allowed to testify, but we do not think he was an accomplice. The regular occupation of Tichenor was that of driver of a taxi cab. He knew nothing at all of the robbery, which occurred about eight o’clock at night, until long after it had happened. About eight o’clock on the night of the robbery he started on a journey with a passenger to a neighboring town. Having delivered his passenger at his destination he was returning to Owensboro when he was intercepted at a cross-road by appellant Anderson, and requested by Anderson to go with him to a certain coal house at the rear of a brick country church, and there receive and haul for Anderson a quantity of liquor. This Tichenor, after protest, consented to do, but he did not
4. It is insisted by appellant that the lower court should have instructed the jury on the law relating to the crime of receiving stolen property, and should have given an instruction touching the question as to whether or not appellant was an accessory after the fact. We cannot agree with this insistence. Every instruction
5. Appellant argues that his substantial rights were prejudiced by the rejection of material evidence offered in his behalf on 'the trial. This rejected evidence relates to what Tichenor did with respect to the whiskey after it had been stolen. It is insisted that this evidence should have gone to the jury to prove that Tichenor was an accomplice, which, if true, would have put his evidence under the rule of section 241 of the Criminal Code concerning accomplices, and would have, therefore, materially weakened the evidence of Tichenor. As we have already pointed out that Tichenor was merely an accessory after the fact, if indeed an accessory at all, and that his evidence would not be controlled or affected by said section of the Criminal Code, the rejection of the evidence, complained of by appellant, was wholly unimportant.
6. It is hardly worth while for us to comment upon the evidence in order to show that it would have been gross error on the part of the trial court to have sustained appellant’s motion for a directed verdict in his favor at the conclusion of the evidence for the Commonwealth. Jones, the man from whom the whiskey was taken, testified concerning the robbery and said that he recognized but one of the robbers, but that he saw four men, two of whom came into the house, covered him with a pistol and a flashlight, while the other two remained at the edge of his porch at a convenient place to give aid and assistance to those who were actually forcing him to yield up his property; that after they went into the cellar he saw the other two men and they helped to carry away the whiskey. Cranor, one of the robbers, tells the whole story, implicating appellant Anderson in it all. Tichenor was hailed by Anderson on the road from the place of the robbery to Owensboro only a very short time after the commission of the crime, and Anderson then asked Tichenor to haul part of the loot to Owensboro. This occurred so soon after the robbery that it is hard to believe that 'appellant Anderson had done more than go from the place of the. robbery to the church where the whiskey was unloaded, and then walk back down to the road intersection, where he expected Tichenor to pass with his taxi on his way back to Owensboro. Anderson acknowl
For the reasons indicated the judgment is affirmed.
Judgment affirmed.