90 Ky. 160 | Ky. Ct. App. | 1890
delivered the opinion op the court.
The offense of grand larceny, as charged in the in dictment, and of which appellants were convicted, consisted of stealing and carrying from a railroad depot ginseng of the value exceeding ten dollars, which the evidence shows was in two sacks'. One of the sacks was found empty, and identified by a witness; but there was no direct evidence connecting either defendant with stealing the sacks from the depot, nor was there any circumstance from which it can be fairly inferred they either stole or received from another the identical ginseng, knowing it to be stolen, except that one Porter testified he was a dealer in produce, and purchased from each of them, on two occasions, ginseng, for which he paid, in the aggregate, to Chenault five dollars and sixty cents and to Sanders four dollars and fifty cents. But Chenault, who is about twelve years of age, testified the ginseng sold by him he got from another boy, who told him a person whose business is digging herbs wished him, Chenault, to sell ginsing, and gave him twenty-five cents for doing so. Sanders did not testify.
The jury may have reasonably inferred from all the circumstances that appellants either stole the two sacks of ginseng from the depot or received what they sold to Porter, knowing it to be stolen, and with intent to deprive the owner of it; but upon which one of the two theories the verdict is based there is no way to determine, because there being no direct evidence to support either, they might have adopted one as well as the other. If the two defendants stole and carried the two sacks from the
For the errors in refusing to give such instruction judgment is reversed as to both, and cause remanded for new trial.