159 S.W.2d 401 | Ky. Ct. App. | 1942
Reversing.
Appellant was convicted of the crime of stealing chickens valued at more than $2 and sentenced to serve 2 years in the penitentiary.
His grounds for reversal are (1) the evidence was not sufficient to submit the case to the jury; (2) failure of the court to sustain the defendant's objections to the introduction of incompetent testimony.
The first complaint is not, and cannot be argued with any degree of assurance. The chickens which the indictment charges to have been stolen were allegedly owned by Mr. and Mrs. J.L. Poynter, both of whom testified positively that the chickens found in appellant's possession were the ones stolen from them. Appellant admits the chickens were in his possession. His defense was based solely on the claim that he was the lawful owner. No other explanation of the possession of the *555
chickens was offered and since the possession of stolen property raises the presumption of guilt on the part of the person in possession thereof, Branson v. Commonwealth,
The second complaint is based on the action of the trial court in permitting the Commonwealth to introduce testimony as to appellant's general reputation for stealing. Although the appellant did not at any time place his character in issue, the Commonwealth contends that this evidence was competent to impeach appellant who testified in his own behalf. The rule in respect to impeachment testimony which we have held applies to criminal cases, Mulligan v. Commonwealth,
"A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of felony."
When evidence of this nature is offered, the court should admonish the jury that the purpose of the evidence is only to affect, if it does affect, the credibility of the defendant as a witness, Atkins v. Commonwealth,
Wherefore the judgment is reversed with directions to grant defendant a new trial and for proceedings consistent with this opinion.