383 S.W.2d 333 | Ky. Ct. App. | 1964
In his trial on a charge of feloniously receiving stolen property (KRS 433.290) the appellant, Marshall Lindsey, took the witness stand in his own defense and testified that it was he who had stolen the property. The Commonwealth respondéd to this unusual stratagem by moving for and obtaining a dismissal of the indictment, after which Lindsey was indicted and convicted on two counts charging felonious theft (KRS 433.250) of the same property.
The defense of former jeopardy was timely asserted and preserved, and it presents the only question before us on this appeal.
Receiving stolen property is an offense separate and distinct from that of stealing the same property, and under ordinary circumstances it would not be possible for a person to be convicted of both, though he may be indicted and tried on alternative counts. Mercer v. Commonwealth, Ky., 330 S.W.2d 734, 736 (1960). By the same token, an acquittal on one of these two charges is: entirely consistent with a conviction on the other. Even, therefore, had Lindsey been acquitted in the first proceeding, the subsequent indictment and conviction for theft would have been proper.
We are unable to agree with the proposition that the theft itself and the receiving of stolen property were parts of the “same criminal act, transaction, or omission” under the test stated in Arnett v. Commonwealth, 270 Ky. 335, 109 S.W.2d 795 (1937).
The judgment is affirmed.