Adams v. Commonwealth

• Decision Date: 21 March 1913
• Citation: 154 S.W. 381,153 Ky. 88
• Parties: ADAMS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

154 S.W. 381

153 Ky. 88

ADAMS v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 21, 1913

Appeal from Circuit Court, Fayette County.

Albert Adams, alias George Roberts, alias W. E. Spencer, was convicted of grand larceny, and he appeals. Affirmed.

Maury Kemper, of Lexington, for appellant.

James Garnett, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

MILLER J.

Appellant Albert Adams, alias George Roberts, alias W. E. Spencer, and William Clark, alias W. R. Coyne, alias Frank Coleman, were jointly indicted in the Fayette circuit court for having robbed Llewellyn Sharp, Jr., of $260 in United States currency. Upon a trial Adams was found guilty of grand larceny and sentenced to serve an indeterminate term of from one to five years in the penitentiary. He appeals; and as a single ground for a reversal he insists that the trial judge erred in giving any instructions whatever upon the subject of robbery or grand larceny, because, as he contends, the only crime sustained by the proof upon which any instructions should have been given was the common-law offense of attempting to commit a felony.

The facts upon which the contention was based, are as follows Sharp and his tenant, Gormley, had sold their tobacco receiving in payment a check for $473. They went into the Lexington City National Bank, cashed the check, and divided the money between them; Gormley, furthermore, paying Sharp $30 which he owed him. Altogether Sharp had about $270, composed mostly of ten and twenty dollar bills, which he rolled together and placed in the left pocket of his pants. The entrance to the bank contained two doors, an outside door at the street and an inside door at the top of several steps on the inside of the bank. Adams and Clark were standing in the bank. As Sharp and Gormley were leaving the bank, and at about the time they passed through the inside door and were descending towards the street door, Clark pushed Adams against Sharp. Sharp evidently thinking it was only the usual interference attending the efforts of several people to pass through a door at the same time, attempted to push his way between Clark and Adams in order to reach the outside door; but, as he did so, Gormley, who was behind Sharp, said to him, "They are trying to get your money." Sharp quickly ran his hand into his left pocket and caught Adams' hand as he was withdrawing it, with the money between his fingers and near the top of the pocket. Gormley says Adams' hand was about halfway out of Sharp's pocket and that he saw the money. Sharp's account of the affair appears from his examination as follows: "Q. Which hand did he go into your pocket with? A. I don't know which hand he had in my pocket. Q. What was the first thing which attracted your attention to Adams after he got up against you? A. I was trying to get through between both of them, and Mr. Gormley said to me that they were trying to get my money; and I had it in my pocket, and I run my hand down that way to feel and grabbed hold of him and twisted it out of his hand, and he started to run then. Q. What was it Gormley said to you? A. Said he had his hand in my pocket trying to get my money, and I run my hand down and grabbed hold of him. Q. Show the jury there just how far Adams had his hand in your pocket? A. Say this is a roll of money, and I run my hand down that way and grabbed it just about that way, is the way he had it when I grabbed hold of it. Q. If I understand you, Adams' hand was just about like that when you grabbed him? A. Just about that way; he just barely had hold of the money; in fact, just about that shape. Q. Like this? A. No, he didn't have hold of it with his hands that way; he just had it in about that shape (indicating the money in the fingers at the end of the fingers holding the money at one end). Q. If I understand you, he had the money drawn out of the pocket? A. Yes, sir; and I run my hand down. Q. And he had the money in his fingers like this? A. Yes, sir. Q. Had he gotten his hand entirely out of your pocket? A. Yes, sir. Q. Had the money gotten entirely out of your pocket? A. Just barely--the bills just barely touched the outside of my pocket. Q. And then you grabbed his hand with which one of yours? A. This one right here (indicating left hand)." Sharp and Gormley were the only witnesses upon this point. The appellant confined his evidence to an attempt to show that Sharp's testimony upon the examining trial was contrary to his testimony upon the trial in the circuit court. Neither Adams nor Clark testified.

"Larceny" is the taking and carrying away of the mere personal goods of another with intent to steal them. The first requisite of larceny is taking possession of the goods by the thief; and a taking and carrying away of the goods is an essential element of the crime. Appellant insists that the asportation has not been shown in this case. To constitute "asportation," there must be a taking or severance of...