116 S.W.2d 981 | Ky. Ct. App. | 1938
Affirming.
On Saturday, November 14, 1936, Roy Gibson was robbed. Cecil Lanham and Bud Elam were charged by indictment with this robbery, and upon their trial were convicted. Punishment of each was fixed at imprisonment at three years and six months in the penitentiary. Their motions and grounds for a new trial were overruled, and they have appealed.
Smith did not approve of what was being done and begged Elam and Lanham not to treat Gibson that way. Whereupon Smith was told to "Shut up, or they would knock his brains out." After that Smith left. The girls had turned their backs on the party before the disrobing began. That left only Gibson and the two defendants. They say this disrobing did not occur, and that they did not get any money from Gibson. The two girls and Smith corroborate Gibson, but they do not know that any money was taken from Gibson; at least they did not see it. The two defendants left, and Gibson, after putting on his clothes, went to Ed Carroll's to call the sheriff's office at London. Two officers came out and arrested Lanham and Elam at Sander's filling station in North Corbin.
The first ground urged for reversal is that this conviction is flagrantly against the evidence which is rested upon the idea that the only evidence that these men robbed Gibson of $4 and a package of cigarettes is the evidence of Gibson himself, while none of the other witnesses saw the defendants get this money or get these cigarettes. But the other witnesses corroborate Gibson in the other facts connected with the robbery, and we cannot say there was no evidence to sustain this conviction. The defendants had no money before the robbery, and Gibson had furnished them money then to buy whisky to furnish entertainment to the party, and after the robbery the defendants had money and were buying whisky for their entertainment about the time they were arrested.
In the Southerland, Lawson Vaughn Case, the defendants admitted taking a pistol from Prewitt, but alleged that they did so without any intention of permanently depriving Prewitt of his pistol, but took it solely to protect themselves against the use by Prewitt of that pistol against them in his enraged, condition, thus presenting a very different state of facts from the facts presented here.
Such instructions were held proper in the Southerland Case because of the admissions made by those men, for robbery is a larceny done by force or putting in fear; but these men do not admit taking any Property from Gibson, hence they presented no theory in this case requiring such instructions.
Finding no errors in the record, the judgment is affirmed.