Bibb v. Commonwealth

• Decision Date: 10 June 1908
• Citation: 112 S.W. 401
• Parties: BIBB v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

112 S.W. 401

BIBB v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 10, 1908

Appeal from Circuit Court, Daviess County. "Not to be officially reported."

Ella Bibb was convicted of robbery, and she appeals. Reversed and remanded.

Louis I. Ingleheart, for appellant.

James Breathitt, Atty. Gen., and Tom B. McGregor, for the Commonwealth.

HOBSON J.

Ella Bibb was indicted for robbery. She was convicted and her punishment fixed at four years' confinement in the penitentiary.

She was charged with robbing D. E. Lester by forcibly and feloniously taking from his person his pocketbook or purse containing money of the United States. The proof showed that the man's name was B. E. Lester, but this was not a material variance, under section 128 of the Criminal Code of Practice as the offense was in other respects described with sufficient certainty to identify the act. Section 128 is as follows: "If an offense involve the commission of, or an attempt to commit an injury to person or property, or the taking of property and be described in other respects with sufficient certainty to identify the act, an erroneous allegations as to the person injured or attempted to be injured or as to the owner of the property taken or injured or attempted to be injured, is not material."

Complaint is made of the argument of the commonwealth attorney in his concluding speech to the jury; but nothing of this is contained in the bill of exceptions. A matter of this sort can only be brought to this court by the bill of exceptions. It cannot be brought here upon the affidavits filed on the motion for new trial. The errors of the court on the trial of the case must be shown in the bill of exceptions, not by the affidavits filed on the motion for new trial.

The facts shown on the trial were that Lester and another negro named Scott Driscoll were in Owensboro, and while there went into a house where there were two negro women, one of whom was Ella Bibb. Lester's statement as to what occurred after he got in is as follows: "But when we got in there I did not see anything but these two women, and I says to my friend, 'We have no business in here,' and one of the women came around where I was, and I guess she saw the print of my pocketbook on the outside of my pants, and she came up and made a dive at my pocket and ran her hand in and got the pocketbook before I could take hold of her, and I felt in my pocket and found that the pocketbook was gone, and I says to her, 'You have got my pocketbook,' and she says 'No, I haven't,' and I says, 'Yes, you have." He said that there was $6.10 in the pocketbook and that he went down and got a policeman, who came up and arrested the woman and got his money back for him. He said in his cross-examination, that when he felt her hand in his pocket he grabbed at her arm, but that...