140 Ky. 634 | Ky. Ct. App. | 1910
Opinion op the Court by
Reversing.
ApuelJant, James Hayden, was jointly indicted with Georgia Belle Smith ,charged with the crime of grand larceny. He was tried by a jury in the Jefferson circuit court and found guilty, his punishment being fixed at confinement in the penitentiary for a period of two years. From the judgment of conviction he appeals.
Appellant asked for, and was given, a separate trial. Georgia Belle Smith was first tried and convicted. Upon the trial of appellant the evidence for the Commonwealth was to the effect that Mrs. Sallie Krebs and Morris Seifer, who boarded with her at her home on Preston street, lost several articles of wearing apparel. Appellant disposed of these articles, with the exception
“O. I want to ask you if you were present at the time this woman stated in this man’s presence she threw the goods out of the window to him?”
“Objected to; objection overruled; to which ruling the defendant excepted at the time, and still excepts.” “A. She threw them out of the window and he carried them, out.”
“0. Did he deny the truth of that statement out there?”
“A. He denied it, he denied where they were at.”
“Q. He denied knowing where they were?”
“A. From her information we recovered the goods.”
After other testimony, to which it is not necessary to refer, the court admonished the jury as follows: “The testimony the officer has just given upon rebuttal will be considered by you only for the purpose of affecting the credibility of the defendant, if in your opinion it does affect his credibility.”
Besides other ways not necessary to be considered now, a witness may be impeached by showing (1) that he has made statements different from his present testi
Bearing the foregoing principles in mind, let us examine the question before us. Appellant did not make the statement in the presence of the policeman; therefore, it does not come under the head of a statement different from the testimony given on the stand. If admissible at all, it must come under the head of (2) contradictory evidence. Is the fact that Georgia Smith, while she and appellant were in the custody of the officers, made the statement to the police in appellant’s
The court did not err in refusing to permit the evidence given on her trial by Georgia Belle Smith, who was then confined in the penitentiary, to be read in behalf of appellant from the stenographer’s transcript. Ample provision has been made for securing the testimony of one confined in the penitentiary. The accused may either take the deposition of the witness (Kaelin v. Commonwealth, 84 Ky. 354), or upon proper showing he may ootain an order of court compelling the personal attendance of the witness at the expense of the Commonwealth (Hancock v. Parker, 100 Ky. 143).
Judgment reversed and cause remanded for a new trial consistent with this opinion.