Atkins v. Com.
| Decision Date | 17 April 1928 |
| Citation | 5 S.W.2d 889,224 Ky. 126 |
| Parties | ATKINS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Lawrence County.
Ora Atkins was convicted of feloniously breaking into a dwelling house with intent to steal and stealing therefrom, and he appeals. Reversed and remanded.
C. F See, Jr., and W. T. Cain, both of Louisa, for appellant.
J. W Cammack, Atty. Gen., and S. H. Brown, Asst. Atty. Gen., for the Commonwealth.
Ora Atkins and Monroe Atkins, his brother, were indicted in the Lawrence circuit court for feloniously breaking into the dwelling house of John Hickman with intent to steal, and for feloniously stealing therefrom beds, bedsteads, tables, and buffets, of the value of more than $20, the property of John Hickman, against his will and consent and with the fraudulent intent to convert same to their own use. On the trial of the indictment, Ora Atkins was found guilty and his punishment was fixed at imprisonment for two years and one day. He appeals.
John Hickman was a miner. In the winter of 1926 he left his home in Lawrence county, taking his wife and children with him and went to West Virginia. He locked up his house, leaving most of his furniture there, taking with him only such as was needed for light housekeeping in West Virginia, and expecting to return some time later. In the following June he learned that the house had been entered and found the property missing from the house in the defendant's possession or in the possession of others to whom he had delivered it.
The proof for the commonwealth showed these facts: Ora Atkins lived nearby, and he and Hickman had known each other for years. Ora Atkins hitched two mules to a wagon one Saturday evening, took his wife and a neighbor boy in the wagon and drove over to this house. He entered it through a window on the front porch and then opened the kitchen door and took out the furniture. The exact time when this was done, under the proof for the commonwealth, is not made very clear except that when he got back with the furniture it was pretty well in the night.
The proof for the defendant showed these facts: In March, 1926, Hickman came back to the neighborhood from West Virginia, and while there he met Charley Neece and said to Neece that he had had some family trouble and had to sell his property there and asked Neece if he wanted to buy some secondhand furniture. Neece told him, "No," but told him that Ora Atkins was there and was a young married man, and that maybe he would buy it. Thereupon Hickman, who was drinking, got to trading with Ora Atkins; Atkins said he had but $10, and Hickman said that was all right, that he could pay him the balance as soon as he got it. Thereupon Atkins and Hickman went to the house which was not far away. Hickman pointed out to Atkins the furniture that he would sell him for $50. Atkins paid him the $10, and Hickman said that he would let the furniture stay in the house until Atkins could move it and said he would leave the kitchen door unfastened so he could enter and get it at any time he so desired. Monroe Atkins, Richard Stidham, and Clyde Skaggs were all present at the time of the transaction, and all testified to the same effect.
On the other hand, Hickman denied seeing Ora Atkins at all or having any conversation with him or Neece, and in rebuttal Hickman showed by a number of witnesses that Ora and Monroe Atkins, Richard Stidham, and Clyde Skaggs were men of bad reputation for truthfulness, but there was no impeachment of Charley Neece. The defendant testified that the kitchen door was not locked.
The first objection made is that, though the defendant objected to all the testimony impeaching the reputation of the defendant and his witnesses, the court did not admonish the jury as to the purpose for which this evidence might be received. While under section 597 of the Code a witness may be impeached "by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief," such evidence may only be considered by the jury for the purpose of impeaching the testimony of the witness, and it...
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Shell v. Commonwealth
...76; Hill v. Commonwealth, 191 Ky. 477, 230 S.W. 910; Roop v. Commonwealth, 201 Ky. 828; Steele v. Commonwealth, supra; Atkins v. Commonwealth, 224 Ky. 126, 5 S.W. (2d) 889. (c) The discursive treatment of the subject in hand perhaps demands, in the interest of clarity, a recapitulation. It ......
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Shell v. Commonwealth
...S.W. 76; Hill v. Commonwealth, 191 Ky. 477, 230 S.W. 910; Roop v. Commonwealth, supra; Steele v. Commonwealth, supra; Atkins v. Commonwealth, 224 Ky. 126, 5 S.W.2d 889. discursive treatment of the subject in hand perhaps demands, in the interest of clarity, a recapitulation. It has been and......
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Shockley v. Com.
...to admonish the jury the purpose for which the evidence is introduced.' An earlier case which discussed this law was Atkins v. Commonwealth, 224 Ky. 126, 5 S.W.2d 889, wherein a conviction was reversed because of the failure of the court to admonish the jury as to the purpose for which the ......