Opinion of the • Court by
Affirming.
The appellant, Jesse Utterback, was jointly indicted with George Hambrie and. Mat Washington for . the crime of grand larceny, committed, as alleged by taking, stealing and carrying away, from the possession of Chas. Gamby, twenty-five dollars in currency, which was the personal property of Gamby, and with the intent to convert it to their own use and benefit, and to permanently deprive the owner of the use and benefit of it. The indictment while it alleged that one or the other of the parties indicted actually did the stealing, and which one of them so did, was to the grand jurors unknown, it charged that one or the other of them did the actual stealing, and the other two were present at the time and place, and aided and abetted the one who actually took' the money from Gamby. The appellant, Utterback, having requested a separate trial, the Commonwealth’s attorney elected to first proceed against him. The trial resulted in a verdict of the jury finding him guilty of the crime charged in the indictment and fixing his punishment at confinement in the penitentiary for two years, and a judgment was rendered accordingly. The appellant’s motion for a new trial having been overruled, he has appealed to this court and urges as grounds for a reversal of the judgment that the court erred to his prejudice, first, in admitting incompetent evidence against him, and second, in denying a motion for a peremptory instruction in his behalf, and third, in denying him a new trial upon the ground that the evidence was insufficient to support the verdict.
The grounds upon which the reversal is sought, make it necessary to consider the evidence heard upon the trial which, in substance, proved the following facts and circumstances. Appellant whose home- was at Lawrenceburg, Ky., for some reason not explained, was
While the chief of police of Maysville was testifying as a witness, he deposed that he communicated with the marshal of the fair grounds over the telephone, saying to him that he had arrested the three parties and was holding them as prisoners, and that the marshal replied, in substance, that the person whose pocket they hacl picked was then on his way to Maysville, and would arrive there very soon. This testimony of the chief of police is complained of as being prejudicial to the substantial rights of the appellant. An examination of the transcript develops the fact that no objection was made to this testimony by the appellant, nor was any exception taken to its admission. It is settled by a long line of decisions of this court, that an appellant can not be heard to complain of the admission of testimony to which he did not object in any way upon the trial. Belcher v. Commonwealth, 181 Ky. 516; Dalton v. Dalton, 146 Ky. 18; McGee v. Vanover, 148 Ky. 737; Fish v. Welch’s Admr., 157 Ky. 17; Harris v. Commonwealth, 163 Ky. 781.
Touching the appellant’s contention that the evidence was insufficient to support the verdict, and for that reason he was entitled to a new trial, the uniform principle applying in this state to criminal procedure is that a verdict of conviction will not be set aside, unless it is palpably against the weight of the evidence, and this rule prevails as well when the evidence is circumstantial, as when otherwise. Minnaird v. Commonwealth, 158 Ky. 216; Chaney v. Commonwealth, 149 Ky. 467; Wilson v. Commonwealth, 140 Ky. 1; Hall v. Commonwealth, 152 Ky. 812. The verdict in the instant case, although the evidence was circumstantial, does not appear to be either flagrantly or palpably against the weight of the evidence.
The judgment is therefore affirmed.