Webster v. Com.

Decision Date01 February 1974
PartiesCarlisle Wilson WEBSTER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
CourtUnited States State Supreme Court — District of Kentucky

Frank E. Haddad, Jr., Louisville, William P. Bach, Jackson, for appellant.

Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty . Gen., Frankfort, for appellee.

PALMORE, Justice.

Carlisle Wilson Webster appeals from a judgment sentencing him to consecutive terms in the penitentiary of three years for breaking a vending machine with intent to steal, KRS 433.190, and 10 years for illegal possession of burglarious tools, KRS 433.120(2), pursuant to a jury verdict on pleas of not guilty. He was tried jointly with one Mildred Spencer, who also was convicted on similar charges.

In the late afternoon or early evening of Saturday, July 17, 1971, Webster and Mildred were in an automobile being driven by a man named Cox. As the car left a service station in or near Campton it was followed by an automobile occupied by three local deputy sheriffs, at least one of whom, while at the service, station, had noticed Cox, Webster and Mildred 1 standing in the vicinity of the vending machines located some 50 or 60 feet from the gasoline pumps. The Cox automobile pulled over to the side of the road, and as the officers passed they observed that Cox and Webster appeared to be arguing and attempting to fight. After turning around, they arrested Webster for public drunkenness and Cox for driving without an operatorhs license. Cox for driving without an operator's license. up a coin box and two shaving kits containing assortments of nickels, dimes and quarters.

The officers found in Webster's front pockets a small screwdriver, a pocket knife, and an unfamiliar metal instrument with movable parts and prongs. Upon a later search of Webster in the county jail a small Allen wrench fell out of his clothing and another metal instrument like the one mentioned above was found in one of his socks. Testimony eventually introduced in the trial was ample to prove that by means of the wrench and screwdriver these peculiar instruments could be adapted for use in opening the type of locks commonly found on vending machines. Webster told one of the officers that he was a machinist by trade and had made the tools in question, though for what purpose he did not say.

During the evening of July 17 it was brought to the attention of the service station employes that coins being placed in the Coca-Cola machine were falling through to the ground, so early the next morning the owner opened it with his key and found the coin box missing. In his testimony he identified the box found in Cox's automobile as being like the one that had been removed from the machine at his station.

Neither of the defendants testified, nor did Cox, who evidently was absent and unavailable as a witness. The same counsel represented both defendants.

At the beginning of the trial counsel for the defendants invoked the rule 2 for exclusion of the witnesses, but on motion of the Commonwealth's Attorney the trial court over objection permitted the sheriff, the three deputies hereinbefore mentioned and a state trooper who had assisted in the investigation to remain in the courtroom. This, it is contended, was a prejudicial abuse of discretion.

CR 43.09, which of course applies to civil cases, provides expressly that it does not apply to 'the officers of court,' whereas RCr 9.48 contains no such exclusion. According to the commentary by the original drafters of the Criminal Rules, RCr 9.48 'is the same as CR 43.09 adjusted to criminal cases.' The principal adjustment being the omission with reference to officers of the court, it is to be presumed that it was not unintentional. Nonetheless, it is beyond question that the whole matter of what witnesses will be excluded from hearing the others before themselves testifying lies within the sound discretion of the trial court. Cf. Ragland v. Com., Ky., 421 S.W.2d 79, 81 (1969); Moore v. Com., Ky., 323 S.W.2d 577, 578 (1959); Ray v. Com., 241 Ky. 286, 43 S.W.2d 694, 696 (1931) .

A witness need not be considered an officer of the court, at least within the meaning of these procedural rules, merely because he is an officer of the law. If his presence is not required for the benefit of the court or assistance of counsel there is no reason for him to be regarded differently from any other witness. Therefore, under circumstances in which it would be held an abuse of discretion to exempt a witness from the rule, the bare fact of his being an officer of the law should not operate to make it otherwise. Hence we have reviewed the situation in this case from that standpoint.

On the facts we cannot say there was an abuse of discretion or that if so the appellant really was prejudiced. The nature of the testimony the officers were prepared to give was not such that the examination of one was apt to transmit any beneficial schooling to another, nor do we detect in their testimony any evidence that it did. There is no ground for reversal on this point.

During his opening and closing statements to the jury the Commonwealth's Attorney spoke as follows:

'Ladies and gentlemen, this is the type of case we haven't had much experience with in this County. . . . This case is not the type of case where someone goes out and breaks in a building and steals something for extra money or just because they thought they could get by with it. This is a case of professional burglary (objection overruled). The evidence will bear out what I am saying. This is a preview of what the evidence will be. These are professional burglars and they had all the paraphernalia necessary to break into vending machines, buildings, stores or any type of place where a man could store his goods and try to protect them . . . Notice as the testimony...

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    ...case, beyond a reasonable doubt) in order to return a verdict in favor of the party who bears the burden of proof." Webster v. Commonwealth, Ky., 508 S.W.2d 33, 36 (1974). Thus we have sought to avoid abstract legal principles, presumptions, 3 comments on the weight of the evidence, and ref......
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    ...to be statements of black-letter law, the latter cautionary statements regarding the jury's conduct. See generally Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky.App.), cert. denied, 419 U.S. 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974); Miller v. Noell, 193 Ky. 659, 237 S.W. 373 (App.1922). T......
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