Fletcher v. Commonwealth, 118 Ky. 351

Fletcher v. Commonwealth

118 Ky. 351 | Ky. Ct. App. | 1904

Opinion of the court by

Chief Justice BURNAM

Reversing.

The appellant, John J. Fletcher, was accused by the grand jury of Clay county of violating section 1162 of the Kentucky Statutes of 1903 by a felonious taking from the Pleasant Run Meetinghouse of plank, lumber, and other things- of value, with the intention of converting same to his own use. Being put upon his trial before a petit jury, he was convicted. It was shown by the testimony for the- Commonwealth that he was engaged in the business of hlacksinithing and repairing vehicles of all kinds a short distance from the Pleasant Run Church, on Raider’s creek, in Clay county, Ky., and that during the month of October, 1902, he went to the church *353and took therefrom a board about 10 or 12 feet in length and 12 or 14 inches wide, carried it to his shop, and used it in the construction of a wagon bed for.one of his customers; and that on another occasion, near the same time, he took another piece of plank from the church while in company with one Jule Hacker. Both of these boards were taken in the daytime, without the slightest attempt at concealment, the defendant remarking at the time that he wanted a piece cf seasoned lumber, and would return other boards in the place of those taken by him. It is also shown that he did return boards of approximately the same size as those taken. It appears that several years before a lot of lumber had been taken into the church for the purpose of manufacturing seats for the congregation, and that, after finishing the number required, several hundred feet of lumber was left over, which was left m the meetinghouse; and that the boards taken by defendant were a part of this surplus lumber, which had become well seasoned in the meantime, The section of the statute under which appellant is proceeded against reads as follows : “If any person shali feloniously take out of or from any church, chapel, or meetinghouse, schoolhouse, courthouse, or other public building, any goods or chattels or other thing of value belonging thereto, ... he shall be confined in the penitentiary not less than two nor more than ten years.” Buildings of the kind are described in this section of the statute are usually unoccupied, and consequently easily and safely despoiled by trespassers. The purpose of the statute was to prevent the removal from public buildings of appendages and appurtenances belonging to the building itself, and used in connection with the building; for instance, chandeliers, doors, windows, tables, benches; chairs and such like. . In our opinion, the statute has no application to a pile of loose *354lumber, which did not belong to and was not to be used in any way in connection with the building itself. Besides, in our opinion, it is conclusively shown by the testimony in this case that the appellant did not remove the planksi from the building, with a felonious intent. There was not the slightest •attempt at concealment on his part, and the voluntary restoration by him to the church of other planksi of substantially the same kind and value is wholly inconsistent with any purpose on his part to commit a crime. The inconsiderable value of the plank removed is also material evidence, in our opinion, of a lack of criminal intent. While the defendant was perhaps technically guilty of illegally appropriating personal property, the evidence wholly fails to make out a criminal intent on his part in so doing. We think the trial court erred in overruling the motion at the close of the evidence for the Commonwealth for a peremptory instruction to the jury to find him not guilty.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.