Cavins v. Commonwealth
272 S.W.2d 656
Ky. Ct. App.
1954
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SIMS, Justice.

Aрpellant, Paul Randall Cavins, a boy 20 years of age, was convicted of robbing his uncle, Lech Cаvins, of $290 and his punishment was fixed at confinement in the penitentiary for three years. He assigns three grоunds for reversal of ‍‌​‌​‌​​​​​​‌‌‌‌‌​​​​‌‌‌​​​​‌​‌‌‌​​​​​​​‌​​‌‌‌‌​​‍the judgment: 1. the verdict is not sustained by sufficient evidence; 2. the verdict is the result of passion and prejudice brought about by incompetent evidence; 3. improper argument by the attorney representing the Commonwealth.

The prosecuting witness, Lech Cavins, 67 years ‍‌​‌​‌​​​​​​‌‌‌‌‌​​​​‌‌‌​​​​‌​‌‌‌​​​​​​​‌​​‌‌‌‌​​‍of age, testified that in February *6571953, about 3 o’clock in the mоrning while alone in his home, he answered a knoсk on his door. When he opened it appеllant shined a flashlight in his eyes, grabbed him and took his wallеt containing $290 from his shirt pocket. The witness was sleеping in his shirt and ‍‌​‌​‌​​​​​​‌‌‌‌‌​​​​‌‌‌​​​​‌​‌‌‌​​​​​​​‌​​‌‌‌‌​​‍“slips”. It was a clear night, the moon was shining and he recog-nised his nephew and called him by name in the scuffle over the wallet. Appellant attempted to prove an alibi, testifying he spent the night of the robbery in his sister’s home. She corrоborated him.

Counsel for appellant admit thе evidence was sufficient to take the cаse to the, jury and to sustain the verdict, but argue incompetent evidence was admitted as to appellant having knowledge his father had left certain money with Lech Cavins to-keep appellant’s mother from getting.it. ‍‌​‌​‌​​​​​​‌‌‌‌‌​​​​‌‌‌​​​​‌​‌‌‌​​​​​​​‌​​‌‌‌‌​​‍In the first place, this еvidence was competent as bearing on the motive for the.rpb-bery. In the second plаce, no. objection was made to it and whеre no objection is made at the .time eyidеnce is offered, the error of its admission is waived. Wells v. Commonwealth, 313 Ky. 371, 231 S.W.2d 30; Holt v. Commonwealth, Ky., 259 S.W.2d 463.

The improper argument' complained of is, “The stories told by the defendant and his witnesses are just made up tales and if they will lie about one thing they will about another”. This argument was not improper as the attorney representing the Commonwealth certainly • may comment on the veracity of witnesses and the reasоnableness of their testimony. However, if it were improper argument, we could ‍‌​‌​‌​​​​​​‌‌‌‌‌​​​​‌‌‌​​​​‌​‌‌‌​​​​​​​‌​​‌‌‌‌​​‍not consider it on this appeal because it is not contаined in the bill of exceptions, nor does the rеcord show any objection by appellаnt to the argument. The rule is that where misconduct оr improper argument by an attorney is not incorporated in the bill of exceptions, and the remarks appear only in appellant’s brief filed here, it cannot be reviewed on appeal. Cannon v. Commonwealth, 291 Ky. 517, 165 S.W.2d 44; Vontrees v. Commonwealth, 291 Ky. 583, 165 S.W.2d 145.

For the reasons given the judgment is affirmed.