Alsept v. Commonwealth

• Decision Date: 06 October 1931
• Citation: 42 S.W.2d 517,240 Ky. 395
• Parties: ALSEPT et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

42 S.W.2d 517

240 Ky. 395

ALSEPT et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

October 6, 1931

Appeal from Circuit Court, Magoffin County.

Johnie Alsept and Ed Roark were convicted of arson, and they appeal.

Affirmed.

F. T Allen and Leebern Allen, both of Campton, and E. B. Arnett and M. F. Patrick, both of Salyersville, for appellant.

J. W Cammack, Atty. Gen., and S. B. Kirby, of Louisville, for the Commonwealth.

CREAL C.

Johnie Alsept and Ed Roark were convicted of arson in the Magoffin circuit court and their punishment fixed at confinement in the penitentiary for three years.

On this appeal they are urging as grounds for reversal: (a) That the verdict is not supported by sufficient evidence and is a result of passion and prejudice on the part of the jury. (b) Misconduct of the commonwealth attorney in the argument of the case before the jury.

A vacant dwelling on lands belonging to Ollie Adams and Irvin Burton burned on the morning of November 21, 1930. The fire was discovered by neighbors shortly before daylight. A number of persons went to the scene of the fire, but, according to the evidence, none of them went into the yard, as Adams had sent for bloodhounds and had requested that no one go on the ground immediately surrounding the house until the dogs arrived.

B. G Mulligan, owner of the bloodhounds, arrived with them between 2 and 2:30 the following afternoon. He took the dogs into the yard, where, according to his evidence and corroborated by other witnesses, they took the trail and followed it out through the gate into the road. They continued along the road for about a mile in the direction of the home of appellant Alsept. At this point one of the dogs attempted to turn off to the right through a field, but on being brought back followed the other dog to the door of Alsept's home. They were then returned to the point from which the trail seemed to diverge, and both picking up the trail through the field followed it to Roark's home.

The evidence for the commonwealth indicates that appellants were at the home of Less Higgins between 1 and 2 in the morning and later were at the home of Bud Risner. They claimed to be possum hunting. Bud Risner and Nellie Risner, his daughter, testified that while appellants were at their home, Alsept, in the presence of Roark, asked as to whether Adams and Burton had their house insured and further stated that "it ought to be melted down."

A number of witnesses testified to having seen tracks leading from Risner's home, down the branch to the scene of the fire, and similar tracks were found in the yard and in the road following the direction which the dogs trailed. After the fire, neither of the appellants were seen by neighbors but once until their arrest in Breathitt county some 30 days later, although they testified that they were hunting and trapping in that community. Roark admitted that he knew a warrant had been issued for their arrest. He gave as an excuse for evading the officers that he did not want the Stacey boys to get the reward which had been offered. Appellants admitted that they were at Risner's home, but denied that they had asked about the insurance on the house or had stated that it ought to be melted down. They also denied that they had any part in the burning of the house, and both testified that after leaving the home of Roark, they went across the hill directly to their own homes and did not pass near the house of Adams and Burton.

On cross-examination, Bud Risner admitted that he sent word to appellants that if they would give him $100 he would leave and not testify against them....