188 Ky. 817 | Ky. Ct. App. | 1920
Opinion op the Court by
Affirming.
The appellant was tried in the court below under an indictment charging him with the crime of. grand larceny, the subject of the larceny being eight chickens, the property of Sherman Collins, of greater value than $2.00. The trial resulted in a verdict finding appellant guilty and fixing his punishment at confinemnet in the penitentiary for the period of two years. He was refused a new trial and has appealed.
He complains: (1) That the indictment is fatally defective ip. failing to specify the number of chickens
The third and fourth grounds urged by appellant for reversal will be considered together; for, obviously, if as claimed in the fourth ground the verdict is not supported by the evidence, the peremptory instruction should have been given.
Consideration of the evidence found in the record convinces us of the unsoundness of these contentions. According to the testimony of Sherman Collins eight chickens, six “dominecks” and two brown ones, worth $1.00 each, were stolen from his premises on the night of February 9, 1920. A day or two later he discovered and identified the six dominecks in the possession of J. W. Stephens, who had them in his store in Berea for sale. Stephens testified that the six chickens were purchased by him of Eliza Houndshell, who testified that ghfe purchased them of appellant February 10 and on
It is patent that the testimony of the several witnesses referred to shows the .appellant to have been in possession of six of the eight chickens stolen from Collins. and their sale by him, and this evidence shifted to his shoulders the burden of showing his innocence of the theft. In giving his testimony he denied the theft and claimed to have bought the chickens of Henry Nuckols. He also denied that they were sold by him to Eliza Houndshell and said he left them with Lizzie Nuckols as security for board he was owing her. His father, testifying in his behalf, said Henry Nuckols, after appellants arrest, confessed to him (the witness) that he had stolen the chickens. But this Henry, in rebuttal, stoutly denied. In addition to the witnesses named others introduced for appellant testified, impeaching the reputations of the Nuckols family and sustaining that of ap1-pellant to the extent of declaring that they had heard nothing damaging to his character, except his illicit relations with Molly Nuckols. It will thus be seen that, while very conflicting, the evidence was abundantly sufficient to require the submission of the case to the jury, whose province it was to weigh the evidence and arrive at the truth. It was clearly their right to believe the evidence of the Commonwealth’s witnesses and disbelieve that of the appellant’s witnesses, as they seem to have done by the verdict arrived at. Obviously, nó rea
The instructions correctly gave the jury the whole law of the case and the record disclosing no prejudicial error, the judgment is affirmed.