Bogie v. Com.
Citation | 467 S.W.2d 767 |
Parties | Lewis BOGIE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
Decision Date | 21 May 1971 |
Court | United States State Supreme Court (Kentucky) |
Henry L. Rosenthal, Jr., Winchester, for appellant.
John B. Breckinridge, Atty. Gen., James H. Barr, Asst.Atty.Gen., for appellee.
Lewis Bogie was convicted of aiding and abetting in the theft of a riding lawn mower and rototiller owned by one Dalous Hisle and was sentenced to three years' imprisonment. KRS 433.220. He appeals, contending that the trial court committed prejudicial error in (1) sending the jury back to correct a verdict which was inconsistent on its face, (2) admitting evidence of Bogie's previous conviction of felony, and (3) excluding evidence that one of the prosecution's witnesses had been convicted of a felony.
The indictment charged Bogie, Clay Curtis and Donald (Dan) Hughes jointly. Curtis having disappeared, the case went to trial against Bogie and Hughes. Hughes was found guilty of aiding and abetting grand larceny, and in fixing his sentence at one year the jury recommended clemency. Bogie, as we have said, also was found guilty as an aider and abettor, and his punishment was fixed at three years.
According to the evidence the three defendants went to Hisle's house in a truck owned by Bogie. Hughes was a regular employe of Bogie's and Curtis also had done some work for him upon occasion. Bogie remained in the truck while Curtis entered Hisle's garage and moved the mower and tiller outside, but all three men participated in loading them onto the truck bed. The theory of defense for both Bogie and Hughes was that they had been given to understand by Curtis that this equipment belonged to him and was stored at the home of his sister-in-law, hence they did not realize it was being stolen.
To understand the argument about the verdict it is necessary that the instructions be explained. In substance they were as follows:
1. If Bogie or Hughes, or both of them, stole the mower and tiller and the value was $100 or more, he or they should be found guilty of grand larceny and given a punishment of not less than one nor more than five years in prison.
2. If Bogie, Hughes or Curtis, or any two of them, stole the mower and tiller and the value was $100 or more, and if either Bogie or Hughes was present or near enough to aid and abet and did so, he or they should be found guilty of aiding and abetting grand larceny and given a punishment of not less than one nor more than five years in the penitentiary.
3. If Bogie or Hughes, or both of them, stole the mower and tiller, or aided and abetted therein, and the value was less than $100, he or they should be found guilty of petit larceny and given a punishment of not less than one month nor more than twelve months in jail or a fine of not less than $50 nor more than $500.
4. Reasonable doubt on the whole case.
5. Unanimous verdict.
When the jury first returned, it had written two verdicts on the face of the paper containing the instructions. Its verdict on Bogie appeared immediately after Instruction No. 2 and was as follows:
'We, the Jury, find Lewis Bogie guilty of aiding and abetting grand larceny, and sentence him to the penitentiary for a period of three (3) years. / s/ Harrison D. Peet, Foreman.'
The verdict on Hughes appeared after Instruction No. 3, and it was as follows:
'We, the Jury find Donald (Dan) Hughes guilty of petit larceny and sentence him to the county jail for four (4) months. / s/ Harrison Peet, Foreman.'
The record shows that when these verdicts were tendered
The new verdict on Hughes read as follows:
Counsel for Bogie objected to the jury's being sent back to correct the verdict and promptly moved for a mistrial. It is our opinion, however, that the trial court did precisely what should have been done and that there was no error.
It has been held that when a jury has returned a verdict with instructions that are discovered to have been incorrect the case may not be re-submitted for further deliberation under corrected instructions. Roberts v....
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