Allen v. Commonwealth
| Citation | 277 Ky. 168 |
| Parties | Allen v. Commonwealth. |
| Decision Date | 24 February 1939 |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — Where commonwealth sought to increase defendant's punishment under Habitual Criminal Act by showing previous conviction in another state for housebreaking, opinion of Court of Appeals on former appeal that indictment should have alleged and proof should have established that housebreaking was a felony in that state and that court convicting him had jurisdiction was law of case and must be followed on appeal from subsequent prosecution on the same indictment (Ky. Stats., sec. 1130).
2. Criminal Law; Indictment and Information. — The alleagtion and proof that defendant had been convicted of housebreaking in another state and sentenced to three years' imprisonment were insufficient to increase defendant's imprisonment under the Habitual Criminal Act, in absence of allegation and proof that housebreaking was a felony in that state and that court convicting him had jurisdiction (Ky. Stats., sec. 1130).
3. Criminal Law. — In prosecution for housebreaking, wherein defendant testified that he was so drunk that he had no recollection of what happened, the court should have given an instruction on drunkenness.
4. Burglary. — Intent to steal is an element of the crime of "housebreaking."
5. Criminal Law. — Where intent is an element of the crime charged, evidence of drunkenness is admissible to show the absence of intent.
6. Criminal Law. — In prosecution for crime in which intent to steal is an essential element, and where the evidence justifies it, failure to charge that if accused was too drunk to have any intent to steal or convert property to his own use, he should be acquitted, is reversible error.
7. Criminal Law. — In order that a conviction may be considered the "third conviction" under the Habitual Criminal Act, the accused must have committed, and been convicted of, a second felony subsequent to his conviction of a first one, and the third crime and conviction thereof must be subsequent to the second conviction (Ky. Stats., sec. 1130).
8. Criminal Law. — In prosecution for housebreaking wherein the commonwealth sought to increase defendant's punishment under the Habitual Criminal Act by showing prior convictions, failure to give an instruction on specific penalty for housebreaking was error (Ky. Stats., sec. 1130).
9. Criminal Law. — Where commonwealth seeks to increase punishment under Habitual Criminal Act by showing prior convictions, jury can find defendant guilty of the particular crime charged and fix his punishment accordingly without being required to find him guilty under Habitual Criminal Act (Ky. Stats., sec. 1130).
Appeal from Harlan Circuit Court.
R.S. ROSE for appellant.
HUBERT MEREDITH, Attorney General, and WM. F. NEILL, Assistant Attorney General, for appellee.
Before JAMES M. GILBERT, Judge.
Reversing.
Joe Allen was charged with housebreaking and it was further charged in the indictment that he had twice been previously convicted of felony. By the verdict of the jury, his punishment was fixed at confinement in the penitentiary for life, and from the judgment entered on that verdict, he prosecutes this appeal.
This is the second appeal of this case, the opinion of this court on the first appeal being found in 272 Ky. 533, 114 S.W. (2d) 757, 761. In that opinion this court said:
"This indictment should have alleged, and the proof should have established, that housebreaking is a felony in Virginia, and that the circuit court of Dickenson county, Va., had jurisdiction to try Allen for that."
One of the previous convictions of felony charged in the indictment is a conviction of housebreaking in the State of Virginia. Appellant was again tried on the same indictment condemned in the opinion of this court on the former appeal. The indictment did not charge that housebreaking is a felony in Virginia and did not allege that the circuit court of Dickenson County, Va., had jurisdiction to try Allen on that charge. Whether that opinion is right or wrong is immaterial, as it is the law of the case and must be followed. The indictment was insufficient for the reason pointed out in that opinion, and the case must be reversed for this reason.
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