185 Ky. 119 | Ky. Ct. App. | 1919
Opinion op the Court by
Affirming.
The appellant, Harry Hale and one Harvey Rowe, were jointly indicted for the crime of feloniously breaking into a storehouse, with the intent to steal therefrom. Upon a separate trial of the appellant, he was found guilty by the verdict of the jury, and his punishment fixed at
(1) The evidence is insufficient to sustain the verdict.
(2) The conviction was had upon the testimony of an accomplice, which was not corroborated by other "testimony, to the extent required by law to authorize a conviction.
(3) The court erred to the prejudice of his substantial rights in denying him a new trial upon the ground of newly discovered evidence in his behalf. The facts, as developed by the evidence, were substantially, that on a Sunday, Winwright Mallicote, who kept a storehouse, for the sale of merchandise, in the village of Altamont, accompanied by his wife, closed his storehouse, locking the doors, and nailing down the windows, and went for a visit to the dwelling of a neighbor, who resided about three hundred yards distant. It was between ten and eleven o’clock, in the morning, and appellant, who resided near East Bernstadt, had left his home and came to Atlamont, and when Mallicote returned to his storehouse, after having been gone from it about one hour, the appellant was sitting upon the railroad right of way, on the side upon which the house fronted. When Mallicote entered the house, he discovered that the cash drawer had been rifled, and a trunk, in which he kept money, had been broken into with an axe, and the money, a ring and watch, which were in the trunk, had been stolen. The thief or thieves had entered the house, by breaking a pane of a window upon the back side of the house. The sum of money, which had been stolen, was between eight hundrfed and twelve hundred dollars. Mallicote sent for his wife to return to the store, and immediately departed for East Bernstadt, to seek assistance and information, which would lead to the recovery of the money, and the detection of the taker. Very shortly after Mallicote’s wife returned to the house, the appellant and his brother-in-law, Wells, came into the house, and the latter inquired what had occurred, when Mrs. Mallicote answered, “you look and you will see. ” Wells, then said, ‘ ‘ call the bloodhounds.” Mrs. Mallicote answered, “I don’t know how, do you? I can’t leave home. Here is the money, go and call them.” Hale then says, “don’t do that, don’t call the bloodhounds, I know who got the money.” Again
On the day of the theft, when Hale had accused Eowe of the crime, Eowe then told of the transaction, as above stated, but, when he was accompanied by Casteele and went to find the money and watch, which he said, Hale had given to him, they failed to find it at any place, and Eowe then claimed, that he had thrown the money over into a garden,-and pretended to look for it under his father’s house, and in the bushes, and said, that some one must have gotten it.
Hale denied that he had ever told Eowe, that he intended to steal the money, or that he had done so, or that he knew anything of the theft until it was accomplished; or that he went in the direction of the' Altamont spring, when he started to get the money. He claimed, that at the request of Mrs. Mallicote, he went to see Eowe, but Eowe denied, that he had broken into the house, and that he went a second time to see him, and by representing to Eowe, that he and Wells and others would have to be witnesses against him, and that the evidence of his guilt was overwhelming, he induced Eowe to confess his
It is insisted, however, that Eowe, being an accomplice in the commission of the crime, and having testified as a witness, that, the conviction rested upon his testimony, and that his testimony was not sufficiently corroborated, as required by section 241, Criminal Code. From the evidence, there can be but little doubt, that Eowe was an accomplice. Where a judgment of conviction, adjudging one to be a principal, aider or abettor, or accessory before the fact, in the commission of a crime, can be sustained upon the evidence, such person will be considered an accomplice, when called as a witness to testify against another, who is charged with participation in the crime.
The newly discovered evidence, upon which appellant insists that he is entitled to have a new trial, consists of the contents of affidavits, made chiefly by fellow occupants of the jail with appellant, who propose if a new trial is granted, to testify to statements made by Rowe after the conclusion of appellant’s trial, which are contradictory of statements made by him upon the trial. The statements, which these proposed new witnesses allege that they will make, could, upon another trial, be made competent evidence, only for the purpose of impeaching or discrediting the evidence of Rowe, and after the proper foundation for their introduction had been laid. The same rule prevails with regard to granting a new trial on account of newly discovered evidence, in a criminal prosecution, as in a civil action, and a new trial will not be granted on account of newly discovered evidence, which is competent only for the purpose of impeaching an opposing witness, unless the circumstances of the case are such, that the new evidence will be of such character and preponderating influence as to be .reasonably calculated to have a decisive influence upon the result of the trial. Gee v. Com., 178 Ky. 666; Ray v. Com., 184 Ky. 800; Lyons v. Com., 176 Ky. 657; Crouch v. Com., 172 Ky. 463; Mercer v. Mercer, 87 Ky. 21; Hays v. Com., 149 Ky. 184; Ellis v. Com., 146 Ky. 715. In the trial of this action, the attorney for the Commonwealth when a witness was called to impeach the testimony of Rowe, admitted upon the record, that his character was bad for morals, honesty, or any other trait, and mere contradictions of
The judgment therefore must be affirmed.