Smith, &C., v. Commonwealth

• Decision Date: 09 October 1894
• Parties: Smith, &c., v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 85

96 Ky. 85

Smith, &c., v. Commonwealth.

Court of Appeals of Kentucky.

October 9, 1894.

APPEAL FROM HARRISON CIRCUIT COURT.

C. A. BOARD FOR APPELLANTS.

WM. J. HENDRICK, ATTORNEY-GENERAL, FOR APPELLEE.

CHIEF JUSTICE QUIGLEY DELIVERED THE OPINION OF THE COURT.

Appellants, Elmer Smith and Morgan Goddard, were indicted in the Harrison Circuit Court for horse-stealing. They were tried, found guilty, and sentenced to confinement in the penitentiary each for four years. The allegations of the indictment under which they were found guilty read as follows:

"The said Elmer Smith and Morgan Goddard on the day of November, 1893, in the county and State aforesaid and before the finding of this indictment, did feloniously combine, confederate and conspire to and did feloniously steal, take and carry away a horse, to wit: A mare, the personal property of L. S. Burgess, with the felonious intent to convert the said mare to their own use, and to deprive the said owner thereof."

It appears from the evidence that appellants resided in the town of Sadieville, Harrison county, Kentucky, and that L. S. Burgess, a farmer, resided near said town, and that during the summer and fall of 1893 both Goddard and Smith had been working for said Burgess; also, that in August or September, 1893, appellant, Morgan Goddard, contracted with said Burgess to raise a crop for him, on his, the said Burgess' farm, during the year 1894, and wanted the use of a horse. Burgess said to Goddard: "I have a horse that has the fistula; you take it and use it as you please, pay for its pasturage, keep it shod, treat it for the fistula and return it to me in the spring."

In November, 1893, Goddard procured a buggy, hitched the horse to it, and drove to Cynthiana. It was county court day. Elmer Smith, a lad sixteen or seventeen years of age, also went to Cynthiana, where he met Goddard. They got drunk, concluded to go to Cincinnati and put up the horse and buggy for sale on the public street, and sold them for twenty-one dollars. They went to Cincinnati and returned to Sadieville the latter part of the same week. Appellants' motions in arrest of judgment and for a new trial were overruled, to which they excepted, as well as to the instructions given and refused by the court.

Appellants asked the court to give to the jury the following instructions, which the court refused to do: "The court instructs the jury that to find the defendants guilty of larceny they must believe that, at the time the defendant Goddard obtained possession of Burgess' horse, he must then have had the purpose and intent to convert the property to his own use and benefit and to deprive the owner of his property feloniously; that unless the felonious intent was proven at the time of the taking of the horse, the law is for the defendant, and the jury will so...