Hobbs v. Commonwealth
655 S.W.2d 472
Ky.
1983
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*1 оwner, one from one of another stolen property property of movable disposes occasion, exceeded stolen, $100. it has been unless knowing that received, retained or dis- property judgment The it to the of with intent to restore posed owner. All concur. by any pеrson The of property movable shall be

recently stolen person facie evidence that

prima was stolen. property

knew such property stolen is a Class

(3) Receiving unless the value of the A misdemeanor HOBBS, Movant, Albert more, or in which case it property $100 v. felony. D a Class Kentucky, COMMONWEALTH herein, that The procedure Respondent. owner, was separate count for each statute, use of the totally ‍‌​‌​​​‌​‌​‌​‌‌​​​‌‌​​‌​‌​​​​‌​‌‌​‌‌​​​‌​​‌​‌​‌‌‌‍correct. Kentucky. Supreme Court of “owner,” clearly indi words “another” and July 1983. designed cates that this statute is Sept. 1983. Rehearing Denied of an owner. It is not directed protection conduct, general such as a at a course of the act of

fencing operation, prohibits

receiving, retaining disposing of аnother. As the court stated

property

Hennemeyer relating to (1979), a case

S.W.2d endangerment of wanton

separate charges

from one course conduct: at the arriving difficulty

We have no (the statute) designed

conclusion that every person each ‍‌​‌​​​‌​‌​‌​‌‌​​​‌‌​​‌​‌​​​​‌​‌‌​‌‌​​​‌​​‌​‌​‌‌‌‍and protect the definition coming

each act within designed

the statute. It is not a statute course of punish a continuous conduct. case, where the the facts of this

Under separate four was stolen from

property occasions, and

owners, on different dates pur- that appellant

the evidence disclosed separate cattle on at least four

chased

dates, jury for the it was not unreasonable ‍‌​‌​​​‌​‌​‌​‌‌​​​‌‌​​‌​‌​​​​‌​‌‌​‌‌​​​‌​​‌​‌​‌‌‌‍of re- of four counts aрpellant

to convict retaining property. stolen

ceiving in one argues also

Appellant owner, the value of

instance, relating to one totalled, in order received was property dividing line between

to exceed the $100 do not so a misdemeanor. We

felony and but, again, the statute proof;

construe the value permit aggregate this if the

would

When a conviction is appeal reversed on because the evidence at trial was not suffi- cient guilt, to sustain a verdict of the Unit- Supreme ‍‌​‌​​​‌​‌​‌​‌‌​​​‌‌​​‌​‌​​​​‌​‌‌​‌‌​​​‌​​‌​‌​‌‌‌‍States Court has held that casе cannot retrial be remanded for but States, must be dismissed. Burks v. United 437 U.S. 98 S.Ct. 57 L.Ed.2d 1 (1978). has' Kentucky holding in Crawley Hobbs contends that charges against him must be dismissed rather than remanded because there would have been no sufficient Jack Emory Farley, Advocate, Public M. evidence to sustain his conviction if trial Robinson, Gail Asst. Advоcate, Public judge objection had sustained his and refus- Frankfort, for movant. ed to admit incompetent evidence Beshear, Gen., L. Atty. Steven Robеrt W. establish the of the dates commission of the Hensley, Gen., Asst. Atty. Frankfort, Burks Crawley. citing respondent. Crawley Burks were each decid YANCE, Justice. ed upon the basis that the evidence admit Albert Hobbs was convicted of the of- trial, ted at regard without to whether fense of of a forged instrument admitted, was not erroneously suffi in the degree first persistent as a felo- Here, cient to sustain a conviction. ny offender in the degree. first The convic- testimony admitted in evidence was suffi tion for possession forged instrument cient to sustain the conviction. We are not was affirmed by the Court Appeals, but disрosed to that an by error a trial the conviction as a persistent felony offend- court in the admission of in evi er was reversed and remandеd for retrial. dence precludes appellate a retrial when an Discretionary review granted was to Hobbs. procured by a defendant on that case, ground. a the defendant This case raises the important question only opportunity entitled to an to obtain a whether reversal of a by ap- conviction an fair free from pellate court on the ground that the only error. evidence admitted at trial to аn es- sential element of the offense was errone- States, supra, Burks v. United upon relied ously admitted necessitates a dismissal of Hobbs, by very point makes this indictment upon former jeopardy following language: grounds rather than a remand for retrial. II, supra, As we have seen in Part The Court of Aрpeals determined that cases which have arisen since [U.S. v.] there was no competent proof Ball 662, 16 at trial that Hobbs was over the years do between generally distinguish 300] prior committed the two felonies. There reversals due to trial error and those re competent proof of Hobb’s sulting evidentiary insufficiency. date believe, however, birth. There was also testimony, admitted We the failure to by the trial court but ruled has sub make this distinction contributed incompetent by the Appeals, stantially concep Court of state of establish the dates of the existing commission of tual confusion in this area previous offenses. We unchal- law. accept Consequently, important lenged fact that roles of carеfully respective was incom- consider petent because the matter is of reversals in double types not before us these two on review of that analysis. issue. jeopardy meantime,

Various rationales have been In the a advanced warrant had issued for support the pоlicy of retrial allowing flight. his arrest for unlawful to correct in our but view the course, the Of fact ‍‌​‌​​​‌​‌​‌​‌‌​​​‌‌​​‌​‌​​​​‌​‌‌​‌‌​​​‌​​‌​‌​‌‌‌‍that warrant most justification reasonable ad- aсtually was issued is not that Hobbs Tateo, supra vanced jurisdiction prosecution, fled at 466 1587 at case, the circumstances of this under *3 L.Ed.2d 448]: no the of the evi see error in introduction “It would high price be a for indeed The other evi dence about the warrant. to society pay every werе accused relating length dence to of time he granted immunity punishment from be- recogni appear required by failed to as his cause of suffiсient defect to consti- zance about rendered tute reversible error in the proceedings warrant harmless. leading to conviction.” alle- We likewise find no merit to Hobbs’ Wilson, supra See 332] gations prosecutorial misconduct. 343-344, n. at 1021- at Judgment 232]; n. 43 L.Ed.2d Wade v. Hunter, 688-689 STEPHENS,' C.J., VANCE, GANT, and 836-837, In WINTERSHEIMER, AKER, and STE- short, for as distin- JJ., PHENSON, concur. guished evidentiary from insufficiency, not does constitute a decision to the ef- J., LEIBSON, separate opin- concurs by that the government fect has failed to ion. such, prove implies its case. As noth- LEIBSON, Justice, concurring. ing respect with guilt to the innocence Commonwealth, Ky., 645 In Garner Rather, it is a dеfendant. determi- extent to (1983), discussing the

nation that defendant has been convict- which of the Bureau of Corrections records through a judicial process which is in Per- fact in issue may prove be used respect defective some fundamental sistent Felony proceedings, Offender e.g., rejection incorrect of evi- receipt “we would restrict this that dence, instructions, or incorrect prosecu- parole alonе.” status occurs, torial this misconduct. When view, language of nothing accused has a interest in In strong obtaining my interpreted as a fair his should be opinion free error, just society position as maintains a our in Garner. weakening concern insuring guilty valid for Depart- from the records of Evidence оurs.) punished. (Emphasis are not admis- ment of Probation Parole previous either the date sible to prejudiced by Hobbs also contends he was offenses. previous fact of or the the admission of he was under the to qualify fails Such evidence charge, unlaw- arrested another to-wit: exсeption entries’ regular business flight prosecution. ful That Depart- respect rule. hearsay charge arose out of this case. He was оf routine not ment’s are records records brought arrested and before district time of the facts at near occurring March, 1980, a preliminary сourt for recorded. being are phenomena which grand in which bound hearing he was 541 S.W.2d Buckler v. his He was jury upon recognizance. own applicable. is not 12, 1980, but May indicted on failed his appear recognizance arraignment him to He also moved from

required do. recog- he gave

the address when bail, until

nized on own

December, 1980, apprehended. he was