Ballard v. Commonwealth, 92 S.W.2d 355

Ballard v. Commonwealth

92 S.W.2d 355 | Ky. Ct. App. | 1936

Affirming.

Harlan Ballard appeals from a judgment convicting him of chicken stealing, and fixing his punishment at two years' imprisonment.

The grounds on which a reversal is asked are that the market value of the chickens was not properly proven, and that the court erred in not giving an instruction on petit larceny.

Attention is called to the fact that appellant had only four of the chickens, and that the only evidence of market value was the following given by N.F. Bryant, the owner of the chickens:

"Q. What were they worth? A. When I started selling them I got twenty-five cents a pound for them, and none of them would weigh under three pounds; I got seventy-five cents to a dollar for them.

"Q. Did you cut that price down? A. I refused twenty-five cents a pound for them, and stopped selling them; I wanted to keep them."

The argument is that the price at which the fowls were being sold was not the correct criterion of value, as declared in Fuson v. Commonwealth, 173 Ky. 238, 190 S.W. 1095. Appellant was jointly indicted with Dell Tipton and Local Sparks, and the indictment charged that they stole and carried away "a certain lot of chickens, about fifteen in number, of and above the value of $2.00, and of the aggregate value of $9.00." It is true that when detected appellant had in his possession *336 only four chickens, but the evidence shows that Tipton had six chickens and Sparks five. As all the parties acted in concert, and together stole fifteen chickens, the degree of the crime of each is not to be measured by the market value of the chickens which he carried away, but by the market value of all the chickens which all of them carried away.

Looking at the question in the light of this fact it cannot be doubted that the evidence, though not quite as direct as it should have been, clearly showed that the market value of the fifteen chickens exceeded $2, thus making a case of grand larceny and doing away with the necessity for instructing on petit larceny.

Judgment affirmed.