Klette v. CommonwealthKlette v. Commonwealth
- Reporters:
- , ,
- Before:
- Hannah
Opinion of the Court by
Judge HannahReversing.
Appellant was indicted, tried and convicted of the crime of grand larceny in the Kenton Circuit Court. The indictment charged him with the stealing of a cow from one Paul Flynn.
1. The jury returned a verdict fixing appellant’s punishmеnt “at not less than two years nor more than two yeаrs in the penitentiary.” This verdict cannot stand.
In Stephens v. Commonwealth, 164 Ky., 265, the jury returnеd a verdict fixing appellant’s punishment at not less than one nor more than one year in the penitentiary; and this court said:
“In the case under consideration, the verdict-makes the miriirtium and maximum, punishment the same»:. The *431punishment thus fixed is not ‘indeterminate’ or for,an ‘indetеrminate term.’ It follows that the verdict complained of does not conform either to the letter оr spirit of the Indeterminate Sentence Law. * * * In a сase like this, where the verdict of the jury does not mеet th.e requirements of the Indeterminate Sentenсe Law, the proper practice is not tо receive the verdict, but to instruct the jury to retire tо the jury room and agree, if they can, upon a verdict and put it in proper form.” See also Biggs v. Commоnwealth, 162 Ky., 104; Adams v. Commonwealth, 164 Ky., 148; Day v. Commonwealth, 162 Ky., 767. The appellant must, therefore, have a new trial.
It may be that the instruction in respect of thе indeterminate sentence feature was not sufficiently clear; and, upon another trial, the cоurt will give the following:
“If the jury believe from the evidencе beyond a reasonable doubt that the defendаnt, in Kenton County, Kentucky, before the finding of the indictment herein, did unlawfully take, steal and drive away one red cow with three teats, the personal property of Paul W. Flynn, of the value of twenty dollars or more, with thе felonious and fraudulent intent then and there of cоnverting the said cow to his own use and of permanently depriving the said owner of his property therein without his consent, they will find the defendant guilty of grand larceny and fix his punishment at confinement in the penitentiary for an indefinite term, to be fixed by the jury and stated in the verdict, fixing thе minimum or shortest period of said sentence for any time in the discretion of the jury, so that it be less than the maximum so fixed by them, but not less than one year; and fixing the maximum or longest period of said sentence for any time in their discretion, so that it be more than the minimum so fixed by the jury, but not more than five years.”
2. It is also contended by appellant that the trial court erred in failing to give an instruction on petty larceny. The proseсuting witness testified that the cow was of the value of sixty dоllars. The defendant himself admitted that the cow was worth about thirty dollars, and no witness placed any lowеr valuation on the stolen property. There was, therefore, no evidence upon which to base an instruction on petty larceny.
Judgment reversed.