129 Ky. 433 | Ky. Ct. App. | 1908
Opinion op the Court by
Affirming.
By the verdict of a jury and judgment of the Hardin circuit court, appellant, following the return of an indictment against him'for horse stealing, was convicted of that crime, and his punishment fixed at confinement in the penitentiary for a term of three years. He insists that the judgment of conviction should be reversed because (1) the verdict of the jury was contrary to law, and without support from the evidence; (2)-that the court failed to properly instruct the jury, and should have peremptorily in
The salient facts furnished by the bill of evidence are, in substance, that appellant went to the livery stable of Harve Bland, at Glendale, Hardin county, and, representing himself to be in the employ of the Cumberland Telephone Company, hired of Bland a pair of horses with which to drive to Munfordville, 30 miles distant, for the purpose, as he said, of counting the poles supporting the wires of the telephone company between Glendale and Munfordville. Appellant agreed with Bland to pay for the use of the buggy and horses at the rate of $3 per day, and return them on the following day. Upon these terms he received the buggy and horses, and, leaving Glendale in the morning, reached Munfordville late in the afternoon of the same day. On the way he stopped at the village of Bonnieville at noon, and there got a meal for himself, but did not have the horses fed. Some hours after appellant’s departure from Glendale; Bland learned that he did not pay his hotel bill at Glendale or for the noon meal he took at Bonnieville, and also ascertained from the manager of the telephone company owning the line in operation between Glendale and Munfordville that it belonged to the Home, and not the Cumberland, Telephone Company, and, furthermore, that the manager was unacqainted with the appellant, and knew nothing of the alleged mission upon which he had gone to Munfordville. The
It was admitted by appellant on the trial that he did not pay his hotel bill at Glendale, or for the meal at Bonnieville, but affirmed that he expected to pay both and for the hire of the buggy and horses upon his return to Glendale, and also admitted by him that he had no money when he left Glendale or upon reaching Munfordville. Indeed, the latter fact was established by the testimony of the sheriff of Hart county, who searched the person of appellant immediately following his arrest. Appellant further admitted that he did not count the telephone poles on the way to Munfordville, but claimed it was his purpose to do so in returning from that place to Glendale. On appellant’s trial it was proved by the Commonwealth that the telephone line, the poles of which appellant claimed to have been employed to count, belonged to the Home, and not the Cumberland, Telephone Company, and the managér or agent of the Home Telephone Company residing in Hardin county and its agent at Munfordville testified that the former was charged with the duty of keeping the poles and wires of the Home Telephone Company between Elizabethtown and Munfordville in' repair, and neither knew appellant or of his alleged employment to count the poles.
Although at the time of hiring the buggy and horses
In view of the foregoing facts, we are nnable to sustain appellant’s contention that there was no evidence to support the verdict of the jury declaring him guilty of the crime charged. Obviously there was not such an absence of evidence as would have authorized a peremptory instruction, and it was for the jury to determine whether the hiring of the horses by appel lant was a pretense and for the fraudulent and felonious purpose of converting them to his own use, or a hiring in good faith with the intent to return them to the owner. Section 1195, Ky. Stats., 1903, provides: “If any person shall steal a horse, mare, jack, or jennet, he shall be confined in the penitentiary not less than two, nor more than ten years.” 'If appellant got possession of Bland’s horses under the false and fraudulent pretense of hiring them, but without intention of returning them to the owner, and with the felonious intention of converting them to his own use and depriving the owner permanently of them, this constitutes horse stealing in the meaning of the statute. And, if the possession of the horses was obtained by appellant as we have indicated, the mere removal of them by appellant from the owner’s custody amounted to a conversion of them to his (appellant’s) own use without proof of a subsequent sale or»other wrongful disposition of them by him. On the other hand, if appellant hired the horses in good faith with the intention of returning them, and was prevented from doing so by the act of Bland in having him arrested, he was not guilty of the crime charged. The doctrine in question is thus stated in Roberson’s Criminal Law, section 417: “But if a person with the intent to steal, obtains the actual possession of prop
We do not think appellant should have been granted a new trial upon the ground that he is and was at the time of his conviction of unsound mind. The several affidavits filed in support of this ground are by no means convincing. None of the affiants knew appellant before his arrest. Consequently they are unacquainted with his past life or family history. Without being experts or testifying as to acts showing unsoundness- of mind, they merely express the opinion that such was and is his condition. Such testimony is of little weight. If, as stated in the affidavit of one of his counsel, appellant’s condition of mind during the trial was such as to prevent his giving assistance to' counsel in the preparation of his defense, that fact
The judgment is therefore affirmed.