181 Ky. 643 | Ky. Ct. App. | 1918
Opinion of the Court by
Certifying the law.
Johnson was indicted in the Bracken circuit court, under sections 1201b and 1199, Kentucky Statutes, for the crime of knowingly receiving stolen goods, and on a trial before a jury was found not guilty. The Commonwealth prosecutes this appeal for a certification of the law. The facts as presented by the Commonwealth show that three boys at Augusta climbed on a railroad gon then in the possession of a common carrier, and being transported for delivery to a given consignee, and unloaded twenty-five or thirty bushels of coal for the purpose of appropriating the same and depriving the ownei of his property therein. Johnson was present and' after seeing the boys do this, bought the coal from them, and himself proceeded to sell it at a reduced price to other parties. His defense was an alibi. The Commonwealth complains that the court, in instructing the jury, erred to its prejudice in directing the jury, in case it found Johnson guilty, to fix his punishment at confinement ih the county jail, as provided in cases of petit larceny, instead of fixing the punishment as provided by section! 1201b, which reads, “Any person who shall . . . appropriate to his own use, or to the use of another, any property in the possession of a common carrier fot transportation or delivery, shall be guilty of a felony,: •and shall be punished by confinement in the penitentiary for not less than one nor more than five years.” It is admitted that the coal stolen from the railroad gon did! not exceed five or six dollars in value, but under section 1199, Kentucky Statutes, the Commonwealth contends that the punishment for stealing goods in course of trans
Under the facts in this case the court should have instructed the jury in the event it found defendant guilty, to fix his ‘punishment at confinement in the penitentiary according to section 1201b, and the law is so certified.