Bennett v. Commonwealth
Decision Date | 16 June 1916 |
Citation | 171 Ky. 63 |
Parties | Bennett v. Commonwealth. |
Court | Kentucky Court of Appeals |
Appeal from Graves Circuit Court.
STANFIELD & STANFIELD for appellant.
M. M. LOGAN, Attorney General, and D. O. MYATT, Assistant Attorney General, for appellee.
The appellant, Bozzie Bennett, was tried and convicted of grand larceny under an indictment returned by the grand jury of Graves county charging him with that crime; the verdict of the jury fixed his punishment at confinement in the penitentiary not less than two years nor more than two years and one day. From the judgment entered upon that verdict he has appealed.
The facts furnished by the evidence in the record are substantially as follows: W. F. Bennett, an uncle of appellant, spent a Saturday night at the home of Tom Bennett, appellant's father, taking with him $429.00 in money. This money he had in a sack about four inches in length, which was carried in his hip pocket. Early in the evening, W. F. Bennett went to bed. Somewhat later the same evening, the appellant, Bozzie Bennett, got into bed with W. F. Bennett. The latter slept late the next morning, Sunday, but appellant got up before he did, without waking him. When W. F. Bennett got out of bed on Sunday morning he discovered that the $429.00 which he had left in his hip pocket was gone. He found on the floor the sack which had contained it, and a velvet string with which the sack had been tied. W. F. Bennett, after discovering his loss, complained to appellant about it and the latter suggested that possibly the money could be found and that his uncle had lost money on previous occasions. W. F. Bennett went on Sunday morning from the home of his brother, Tom Bennett, to that of his brother, James Bennett, and informed the latter of the loss of his money. James Bennett advised the procurement of a warrant for the arrest of appellant, and acting upon this advice, W. F. Bennett caused a warrant to be issued on Monday, the day following. James Bennett, being of opinion that appellant had stolen the money and that he might be able to recover it without the execution of the warrant, took it with him and went to see appellant, whom he met in the road with one, Joe Puckett. He called appellant to one side and informed him that a warrant had been issued for his arrest, charging him with the theft of the money of W. F. Bennett. Thereupon appellant suggested that he might be able to find the money; that W. F. Bennett had probably left it under his pillow or somewhere about the house; and that if he (appellant) were given a chance, he would make a search and see whether he could find the money for his uncle. Being, as he testified, satisfied that appellant had the money and would return it to prevent his arrest, James Bennett permitted him to go in search of it. James Bennett then went to Austin Springs, but on returning found that appellant, instead of carrying out his avowed purpose to search for the money, immediately went to Tennessee and a day or two later from that state to California, where he spent some time, and thereafter returned to Memphis, Tennessee, where his arrest was effected, at the instance of W. F. Bennett. W. B. Sullivan, the sheriff of Graves county, thereupon went to Memphis, took charge of appellant and returned with him to Graves county, Kentucky, for trial.
It was also shown that appellant, but a day or two before the theft of W. F. Bennett's money, attempted to borrow some money through a friend, to whom he said that he lacked twenty-five dollars of having enough money to make a trip to California, which he then contemplated taking. He also said to his uncle, W. F. Bennett, after the latter had charged him with the theft of the money, that he would compromise the matter by paying him $200.00 if the prosecution against him was stopped. In addition to the foregoing facts, it was shown by the testimony of one, Hye, a rural route postman, that shortly after the departure of appellant from this state, he (Hye), read a letter to appellant from the Clovis National Bank, of Clovis, New Mexico, in which it was stated that appellant had, on May fifth, deposited $270.00 in that bank, which on May tenth he drew out. This letter was read by Hye because it was shown to him by Tom Bennett, the father of appellant, with the request that he read it as appellant's wife did not understand the letter, and wished it explained to her. W. B. Sullivan, sheriff of Graves county, testified that when he went to Memphis to take appellant in charge he was told by persons in charge of the jail where he was confined that he had there gone under the name of Brown.
Appellant, testifying on his own behalf, denied that he took his uncle's money or knew anything about its loss; and stated that his uncle had on a previous occasion lost some money which was found by another person and returned to him. He in part admitted the conversation with his uncle, James Bennett, and that he told the latter that he would help to search for the lost money, but denied that he left for California to avoid prosecution for stealing the money. He also admitted that he told his uncle, W. F. Bennett, that rather than be brought into court and prosecuted for stealing the money, he would pay him $200.00 as it would cost him that much to pay his lawyer's fees and other expenses resulting from a prosecution; but that W. F. Bennett then told him that he did not believe he (appellant) had gotten his money. Tom Bennett, the father of appellant, being introduced in his behalf, testified that his brother, W. F. Bennett, often spent the night at his house, and he had on numerous occasions slept with appellant while there; that he saw no money in the possession of his brother on the night the latter claimed $429.00 was stolen from him. Several witnesses were introduced in rebuttal, by whom it was shown that appellant's reputation for morality and veracity was bad.
It is manifest from the evidence introduced for the commonwealth that appellant's complaint of the refusal by the trial court of the peremptory instruction directing his acquittal, asked by him when the commonwealth concluded its evidence, is without merit. As this evidence conduced to prove that the $429.00 was stolen from W. F. Bennett; that appellant was shown to have been the only person who had an opportunity to steal it; and together with his conduct attending and following the loss of the money, his offer to pay $200.00 to prevent his prosecution and his flight from the state after he was charged with the crime, furnished considerable circumstantial proof of his guilt, it compelled the submission of the case to the jury. And while his denial of guilt and explanation of his conduct connected with and following W. F. Bennett's loss of the money and of his going to California supported his claim of innocence, it was the province of the jury to ascertain and declare the truth of the matter, and there is no ground for saying that the verdict finding him guilty is unsupported by evidence, or that it is flagrantly against the evidence.
We, however, find in the record two errors assigned by appellant, each of which was so prejudicial to his substantial rights as to compel the reversal of the judgment of conviction. The first of these errors was the admission of the testimony of Sullivan, the sheriff of Graves county, giving the conversation he had with the jail officials in Memphis when he obtained the custody of appellant for the purpose of bringing him to Graves county, this state, to be tried under the indictment charging him with the crime of grand larceny, of which he was convicted in the instant case. The second error consisted in the admission of the testimony of the rural route postman, Hye, with respect to the contents of the letter,...
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