133 Ky. 452 | Ky. Ct. App. | 1909
Opinion op the Court by
Affirming.
The appellants, William Bennett and Jeff Angel, were indicted, tried, and convicted in the Lee Circuit Court and their punishment fixed at confinement in the penitentiary one year each, for the crime of defacing branded railroad ties in violation of subsection 11 of Section 1409, Ky. St. Failing to obtain a new trial in the court below, they prosecute this appeal.
Subsection 11 of Section 1409, Ky. St. (Russell’s St. Sec. 5867), reads as follows: “Any person or per
The railroad ties, the brands upon which the indictment charges appellants with defacing, belonged, as therein alleged, and as. the evidence showed, to the Ohio Valley Tie Company, a corporation doing business in this State. According to the evidence the
The evidence as to appellants’ guilt of the crime charged was furnished by four witnesses introduced for the Commonwealth, Isaacs, Perkins, Sternberg, and Easter, who testified, in substance: That a lot of ties owned by the Ohio Valley Tie Company and each branded with the letter W and a yellow spot, were in August and September, 1908, lying on the bank of the North fork, near the mouth of the Middle fork, of Kentucky river in Lee county; that they saw appellants engaged in the work of defacing and destroying the brands on the ties by sawing off the ends of the ties containing them and throwing them into a nearby thicket,where they were concealed; that they called to appellants and asked what they were doing, to which they replied that they were sawing off ties, but did not explain why they were doing so. The same witnesses further testified that at the same time appellants in their presence sawed off the ends of some ties containing as a brand a horseshoe and the
Appellants’ first complaint is that the trial court erred in overruling their demurrer to the indictment. In response to this complaint it is onlv necessarv to say that the indictment substantially follows the language of the statute, and, in addition, charged that appellants fraudulently and feloniously committed the acts violative of the statute, and, as the latter specifically defines the crime charged and the manner in which it may be committed, no better form of indictment could have been adopted than that used in this case. Therefore in overruling the demurrer the court committed no error.
Appellants also complain of the ruling of the circuit court in allowing the Commonwealth to introduce, and identify by a deputy county clerk of Lee county, the record containing the writing and accompanying certificates, whereby the Ohio Valley Tie Company adopted the brand for its’railroad ties. The ruling in question was proper. The only competent manner of showing the corporation’s adoption of a brand for its ties was by the introduction and identification of the record thereof by its legal custodian, the county clerk or his deputy, or by the introduction of a copy attested by the clerk or his deputy. The record produced by the county clerk showed that the brand used by the Ohio Valley Tie Company for marking its ties had been 'adopted in the manner required by the statute, and therefore the trial court could have had no doubt of the competency of the record.
Equally unsubstantial is the objection urged by appellants to the proof made by the Commonwealth of the posting up by the Ohio Valley Tie Company of copies of the recorded writing by which its brand was adopted. In no other way could such proof have been made, and no error was committed by the court in admitting it.
It was not, as claimed by appellants, improper or prejudicial to them for the court to allow the witnesses for the Commonwealth, who discovered appellants sawing brands from the ties of the Ohio Valley Tie Company, to testify that 'appellants at the same time and place sawed brands other than that of the Ohio Valley Tie Company from other ties. The entire sawing and destruction of brands was one and the same transaction, or ia series of acts constituting one transaction. Therefore the whole was properly allowed to be proved. In Bishop’s New Criminal Procedure, vol. 1, Sec. 1225, under the title, “Whole Transaction,” the competency of such evidence is recognized in the following statement: “As explained under the doctrine of res gestae, wherever a part of a transaction appears in evidence, the rest is thereby made admissible. So that the entire transaction, wherein it is claimed the wrong in issue was done may be shown, though it includes also other' crimes, and even though each transaction wias a continuing one, or transpiring in parts on different
It is insisted for appellants that their motion for a' peremptory instruction made at the conclusion of the Commonwealth’s evidence should have been sustained by the court. We are at a loss to know upon what this contention rests. It will not do to say that the sawing off of the end of a tie containing the owner’s brand does not, as argued by appellant’s counsel, “cut out, cancel, obliterate, or deface” the brand in the meaning of the statute, for the sawing off of the end of the tie containing the brand and concealing the detached piece is manifestly a destruction or complete “obliteration” of the brand. The evidence seems conclusive of the appellants’ guilt; but if this were not true, and there were but slight evidence of their guilt, that state of case would not have justified a peremptory instruction compelling the jury to acquit them. No better statement of'our meaning as to the matter can be made than is expressed in the following utterance of this court, found in Commonwealth v. Murphy, 109 S. W. 353: “It is not within the province of the trial court to take from the jury a criminal prosecution if there is any evidence, however slight it may be, conducing .to show that the defendant is guilty of the offer se charged, or any of its degrees mentioned in the Code. This rule of practice is not found directly in either the Code or the statutes, but is firmly established as a'part of the criminal jurisprudence of the State, and is uniformly applied by this court in considering appeals in criminal cases when a reversal is asked because the ver
The objections urged by appellants’ counsel to the instructions caused us to consider them with even more than ordinary care. We have not, however, been convinced that they are in any respect incorrect. On the contrary, they fairly and fully present the law as it should have been given for the guidance of the jury. The record as a whole shows that no error was committed to appellants’-prejudice.
Wherefore the judgment is affirmed.