Allison v. Commonwealth

• Decision Date: 10 October 1885
• Citation: 7 Ky.L.Rptr. 252,83 Ky. 254
• Parties: Allison v. Commonwealth.
• Court: Kentucky Court of Appeals

83 Ky. 254

7 Ky.L.Rptr. 252

Allison v. Commonwealth.

Court of Appeals of Kentucky.

October 10, 1885

APPEAL FROM FAYETTE CIRCUIT COURT.

P. W HARDIN, ATTORNEY-GENERAL, FOR APPELLANT.

1. The instruction of the court required the jury to believe that the offense was committed in Jessamine county, and this applies to the receiving of the stolen property, knowing it to be stolen, as well as to the stealing.

2. Where property is stolen in one county and received in another county by a person knowing it to be stolen, either county has jurisdiction of the offense of receiving the stolen property, knowing it to be stolen. (Criminal Code section 21.) The case of Tully v. Commonwealth, 13 Bush, 152, does not conflict with this view.

WATTS PARKER FOR APPELLEE.

Receiving stolen property, knowing it to be stolen, constitutes a separate and distinct offense from the stealing of the property; and where the property is stolen in one county and received in another, the circuit court of the county in which the property was stolen has no jurisdiction of the offense of receiving the stolen property, knowing it to be stolen. ( Tully v. Commonwealth, 13 Bush, 142.)

OPINION

LEWIS JUDGE:

The indictment in this case, found in the Jessamine Circuit Court, but tried in the Fayette Circuit Court, contains two counts. In the first, the defendant is charged with the crime of horse-stealing, and in the second with receiving stolen property, knowing it to be stolen. And the main question presented on his appeal from the judgment of conviction is as to the correctness of the following instruction:

" If the jury believe from the testimony, to the exclusion of a reasonable doubt, that the defendant in the county of Jessamine, before the finding of the indictment herein, either alone or in company with another or others whom he being present did aid or abet, feloniously took and carried away the horse mentioned in the indictment, the property of Rowland Williams, or feloniously received said horse, knowing at the time he received it that it had been stolen, the jury should find the defendant guilty and fix his punishment at confinement in the penitentiary for not less than two nor more than ten years."

The evidence in this case is clear that the horse mentioned was some time during Sunday night before the October county court of Clark county, 1883, stolen from the owner in Jessamine county, and was on the next day in the possession of the defendant in Winchester, Clark county, when and where he sold it. There is also evidence showing that the defendant was in Jessamine county some time during the Sunday the horse was stolen, but it is also clearly established that he was not there, but in Winchester, during that Sunday night, and did not, in person, actually take and carry away the animal from the owner.

It is conclusive that the offense of which the defendant was by the jury convicted, though not stated in the verdict, was receiving the stolen horse, knowing it to be stolen, as charged in the second count of the indictment, and not the larceny charged in the first count. For they were not authorized by the evidence to find him guilty of alone taking and carrying away the horse; nor could they have found him guilty of aiding and abetting another in the larceny without disregarding the instruction, which, as worded, required them, as a condition, to believe him present when the horse was stolen.

The instruction is not as clear and plain in...