280 S.W. 1094 | Ky. Ct. App. | 1926
Reversing.
The indictment herein charged appellant with grand larceny and two previous convictions of a felony. He was convicted and given a life sentence in the penitentiary as is permitted by section 1130 of the statutes upon a third conviction of a felony. That section provides that judgment shall not be given for the increased penalty unless the jury shall find from the record and other competent evidence that fact of former convictions for felony committed by the prisoner in or out of the state." The verdict in this case reads: "We, the jury, do agree and find the defendant guilty as charged in the indictment and fix his punishment in the state penitentiary for the period of his natural life."
It is earnestly insisted that this verdict does not find the fact of the alleged former convictions and therefore does not comply with the above provision of the statute so as to sustain the judgment for life imprisonment. It *325
is true that it was held in Rector v. Commonwealth,
Complaint is also made of the indictment upon the ground that it does not sufficiently allege the particular facts constituting the offenses for which appellant was previously convicted. The indictment, however, avers the fact of two previous convictions in the manner and quite as fully as did the indictment copied into and approved in the Oliver casesupra. The court in Fleming v. Commonwealth,
It also is insisted that the court erred in overruling defendant's motion to require the Commonwealth to elect which charge it would prosecute. This motion was based upon the fact that defendant was charged with stealing two watches from the possession of Dan E. Bingham and that one of them belonged to his father and the other to his son. The court did not err in overruling *326 the motion as only one offense was charged. It was charged that both watches were taken at the same time and place and from the party rightfully in possession of them. "The fact that the various articles may have belonged to different persons is entirely immaterial, the question being merely whether they were taken at the same time, from the same place and as the result of a single criminal purpose or impulse." Gregory's Criminal Law, page 285.
Another insistence is that the court erred in not instructing the jury upon the question of petit larceny. There was, however, no evidence that the value of the watches was less than $20.00. Indeed the only witness who testified as to the value fixed it at $30.00. If there had been evidence that the value of the watches was less than $20.00, it would have been the duty of the court to instruct upon the subject of petit larceny. But, as held in the case of Wellman v. Commonwealth,
We come now to a consideration of the evidence of the alleged former convictions, all of which it is urged was incompetent. If this be true its admission over defendant's objections and exceptions was clearly prejudicial. The Commonwealth introduced the circuit clerk and proved by him that the records in his office showed that the defendant had been previously indicted, convicted and sentenced to the penitentiary, first for house-breaking and later for obtaining money under false pretenses; but none of these records was introduced or read to the jury. This was held to be reversible error in Blair v. Commonwealth,
Wherefore, the judgment is reversed and the cause remanded for another trial not inconsistent herewith. *327