122 Ky. 7 | Ky. Ct. App. | 1906
OPINION by
Reversing.
Tlie appellant, Prior Eaton, Sam Price, and Mat Jackson were jointly indicted on the cliarg© of feloniously breaking and entering tlie storeohuse of "W. H. Dnggar & Son with, intent to steal, and stealing, therefrom goods of the value of $275. Separate trials were awarded, and the Commonwealth elected to try the appellant first, which resulted in hi,s conviction and sentence to the penitentiary..'
The appellant lived about 10 miles from the storehouse that was broken into. On that night it seemed to have snowed some, and the nextjao ruing the tracks of four or five men were discovered leading from the storehouse to the top of a hill not far from it, where horses’ trades were discovered-which led to the house of appellant. With his consent his house was searched on the morning after the storehouse Was broken into, but no goods were found in it. The search was continued until the following day, when part of the goods were found about one-lialf of a mile from appellant’s house, on the land of another. There was some other evidence tending to show the guilt of the appellant, but we will not speak of that, except such parts of it as were objected to, and a reversal is sought because of its admission. While the search was going on in the neighborhood for the goods, the- appellant and four or five other persons were in a room of appellant’s' house. Three or four of the persons were not
In section 197 (15th Ed.), Vol. 1, Greenleaf on Evidence, in note “c” to that section, it is said: “The former rule of evidence that one’s silence shall be construed as a virtual assent to all that is said in his presence is susceptible of great abuse, and calls for
The court admitted evidence to the effect that Sam Price and Mat Jackson on the morning following the night on which the store was. broken into built a fire
It appears that a trunk in the house of Sam Price was searched the morning after the storehouse was broken into and no pocketbook was discovered in it. The next day it was searched again, and a pocketbook containing $1.25 in silver and about 30 cents in one-cent pieces was found.. The court admitted evidence of this fact, and-it erred in doing so for two reasons: (1) The money was not identified as that taken from the storehouse. (2) The finding of it in Price’s house would not tend to show that the appellant had taken it from the storehouse.
The judgment is reversed for proceedings consistent with this opinion.