169 Ky. 815 | Ky. Ct. App. | 1916
Opinion of the Court by
Affirming.
The appellant, a young man twenty-one years of age, was indicted in the Fayette circuit court for the crime of grand larceny, alleged to have been committed by feloniously taking, stealing and carrying away an automobile, the property of Ken Walker, of the value of $600.00, with the intent to appropriate it to his own use and to permanently deprive the owner of it. He plead not guilty to the indictment, and upon a trial he was found guilty by the jury and his punishment fixed at a term in the State Reformatory at Frankfort, Kentucky. His motion for a new trial being denied, he has brought his case to this court upon appeal.
The facts of the case, as appear from the evidence, seem to have been substantially as follows:
He and two associates having just arrived in Lexington from Cincinnati in an automobile, which they abandoned in the street at Lexington, and finding the automobile which they are alleged to have stolen standing near the Union Station, where the owner of it had temporarily left it, without any one’s consent or knowledge, they took possession of it and getting into it immediately proceeded toward the city of Louisville. When they arrived in Louisville, it does not appear how long they remained there, but, as the appellant claims, they left there to go to Owensboro to visit relatives of one of the three, and when within three or four miles of Leitchfield, the gasoline, by which the machine was propelled, gave out and not being able to proceed any fur
The appellant seeks a reversal of the judgment against him upon the following grounds:
First. That the court abused its discretion in not allowing him a continuance of the case when it was called for trial.
Second. Because the court, over his objection, permitted incompetent evidence to be heard by the jury, which was prejudicial to him.
' Third. Because the court overruled his motion for a direct verdict of not guilty.
Fourth. That the court failed to instruct the jury upon the whole law of the case and thereby denied him the benefit of a valid defense which he had.
Fifth. That the court erred in refusing to grant him a new trial upon the ground of newly discovered evidence.
The appellant was arrested upon the charge about the 1st day of December, 1915, and committed to the jail in Lexington, where he remained until the 8th day of January, 1916, when the indictment was returned against him by the grand jury, and on the 10th day of January, thereafter, he was brought into court and his case set down for trial for the 19th day of January. "When his case was called for trial on the 19th day of January, the only ground for a continuance "of the case or a postponement of the trial, which was offered, was the affidavit of one of his attorneys, which was to the effect that he and his partner in the practice of law had been employed only two days theretofore to represent appellant upon the trial, and that the other member of the partnership was then absent in attendance upon' the General Assembly of Kentucky, of which he was a member and which was then in session, and that the affiant had lately come from the state of Texas to this state and had been unable to familiarize himself with the facts of the case sufficiently to undertake the trial of it at that time.
’ The absence of one or more attorneys representing a defendant is not a cause for a continuance of the case, unless it is made clearly to appear that he cannot have
The alleged incompetent evidence which the court permitted to be heard by the jury, over the objection of the appellant, was the copy of a letter which appellant wrote to some of his friends upon the 5th day of December, very soon after his arrest, in which he directed the one to whom the letter was addressed to “tell Gore Williams and Rafe Ragland to leave town at once, because Ben Drake gave Dud Yeal our names, and they will be pinched if they don’t leave right away.” The absence of the original letter was not accounted for, and it was not proven whether the letter had ever been forwarded to its intended destination or whether it was still in the hands of the officers. The admission of the copy was, however, not prejudicial, as the appellant admitted the authorship of the letter in his testimony and the correctness of the copy, and said that he had no explanation to make in regard to it.
It is contended for appellant that he gave evidence in his own behalf upon his trial which tended to prove, that at the time and place of the taking and carrying away of the automobile, his mental condition from drunkenness was such that he was not capable of entertaining or having an intent to steal, and that the court erred to the prejudice of his substantial rights in failing to instruct the jury, in substance, to the effect that it should find him not guilty if it believed from the evidence that at the time of taking and carrying away the automobile, that he was too drunk to have an intent to steal. It is true that one of the essential elements of larceny is a felonious intent or animus furandi, that is, the intent to feloniously and permanently deprive the owner of his property, at the time of taking possession of the property. That, when accused of larceny, a felonious intent being an essential element of the .crime, the accused may show as a defense that at the time he committed the acts, which otherwise would constitute larceny, he was too drunk to have such an intent, there is no doubt. Williams v. Com., 113 Ky. 652; 68 S. W. 871; Terhune v. Com., 144 Ky. 370; Keeton v. Com., 92 Ky.
The contention of appellant that the court should have sustained his motion to direct the jury to find him not guilty, because there was no evidence on the part of the Commonwealth which tended to prove, that when he took and carried away the automobile, that it was done with an intention to steal it, .is wholly without merit. Truly, the taking and carrying away, to constitute larceny, must be done with the motive of permanently depriving the owner of his property in it. The proof is uncontradicted, that appellant and his associates took the car from the possession of the owner, without his knowledge or consent, from a place where he had left it in the street; that they appropriated it to their own use; that they hurriedly carried it from the place of the owner’s residence to a distance of about one hundred and fifty or one hundred and sixty miles and left it at
The practice relating to granting new trials because of newly discovered evidence is the same in criminal as in civil cases. Hays v. Com., 140 Ky. 184. When a new trial is sought upon the ground of newly discovered evidence, the affidavits of the new witnesses must be filed to sustain it. The affidavits must set out the facts to which the witnesses will testify, so that the court may judge as to whether or not the new evidence is of such a character as to justify a new trial of the case. The affidavit of the one seeking a new trial must be filed, wherein he must state that he did not know of the evidence before the trial, and could not with reasonable diligence have discovered it before the trial. Slone v. Slone, 2 Met. 339; Bowling v. Com., 148 Ky. 9; American Central Insurance Co. v. Hardin, 148 Ky. 246. In the grounds for a new trial in this case it is stated that the newly discovered witnesses are Mrs. Stassie Brennon, mother of the appellant, and two others, whose names are not given and whose affidavits are not filed.
Further, section 271 of the Criminal Code, provides that, “If a verdict be rendered against the defendant, by which his substantial rights have been prejudiced,” a new trial will be granted him if he has discovered important evidence in his favor since the verdict. The evidence must be important, it must not be merely cumulative, and when the point upon which the new evidence is sought to be used was in issue upon the trial, the newly discovered evidence must be important and of unerring character, or must have a decisive influence upon the evidence to be overturned by it. Mason v. Mason, 5 Bush 187; Allen v. Perry, 6 Bush 85; Bell v. Offutt, 10 Bush 632; Mitchell v. Berry, 1 Met. 602; Mercer v. Mercer, 87 Ky. 21; Owsley v. Owsley, 25 R. 1186; Torian v. Terrell, 122 Ky. 745. The affidavit of the mother of appellant disclosed that she would testify that when appellant was about eleven years of age he was thrown from a horse, resulting in a wound upon his head, which
Upon consideration of the whole case, it does not appear that appellant has suffered any prejudice in his substantial rights, and the judgment is affirmed.