Bradley v. Commonwealth
| Citation | 288 Ky. 416 |
| Parties | Bradley v. Commonwealth. |
| Decision Date | 25 November 1941 |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — Evidence of accused's guilt of larceny of a truck was sufficient for the jury.
2. Criminal Law. — Where accused was indicted as a second offender, proof of former conviction was competent (Ky. Stats., sec. 1130).
3. Larceny. — In grand larceny prosecution, an instruction referring to stolen vehicle as an automobile instead of a truck, where the stolen vehicle was minutely described in the evidence, was not erroneous on the ground that it was misleading, since the terms "truck" and "automobile" are commonly used interchangeably and could not have misled the jury.
4. Criminal Law. — Where accused was charged with grand larceny as a second offender, punishment fixed at confinement in state
penitentiary for a period of ten years was not excessive, but within statutory limits (Ky. Stats., sec. 1130).
5. Criminal Law. — Where objection is to particular sentence and not to statute under which it has been imposed, a sentence within limits fixed by statute is not excessive, since constitutional prohibition against "cruel and inhuman punishment" has reference to statute fixing punishment and not to punishment assessed by jury within limits fixed by statute (Constitution, sec. 17).
Appeal from Rowan Circuit Court.
James C. Clay for appellant.
Hubert Meredith, Attorney General, and W. Owen Keller, Assistant Attorney General, for appellee.
Before W. Bridges White, Judge.
Affirming.
The appellant, William Everett Bradley, was indicted in the Rowan circuit court for grand larceny. The indictment contained a second count charging that the accused had theretofore, at the November, 1936, term of the Carter circuit court, been convicted of the crime of robbery and sentenced to confinement in the state penitentiary for a period of five years. Upon his trial upon the indictment returned by the grand jury of Rowan county he was convicted and his punishment fixed at confinement in the state penitentiary for a period of ten years, and he appeals. The principal ground relied upon for reversal of the judgment is that the trial court erred in refusing to instruct the jury to return a verdict of acquittal.
Appellant was accused of stealing a motor truck, the property of the Ashland Home Telephone Company. Ben Lowe, an employee of the Ashland Home Telephone Company, testified that he saw a man driving the truck through Morehead. The truck had been parked on the street, and the man driving it was a stranger. Lowe immediately notified the employee of the Ashland Home Telephone Company who had been driving the truck, and they got in an automobile and followed it out the road toward Flemingsburg. They overtook it within a few minutes about four miles from Morehead, where it had run off the road and turned over on its side. The witness saw appellant near the wrecked truck, and he stated that in his opinion appellant was the man he had seen driving the truck in Morehead. Albert Hall lived on the Flemingsburg road near the place where the truck was wrecked. He saw it approaching traveling at a speed of 65 or 70 miles an hour. The driver of the truck was the only man in it when it passed his home. The truck ran off the road about 100 feet from Hall's home, and he went to the scene of the accident immediately. The truck was turned up on the right side, and appellant was pinned down under the steering wheel. No other person was in or about the truck. Two other witnesses testified that they were within a few feet of the place where the truck ran off the road and that they saw the accident. They went to the scene of the accident at once and appellant was the only person in or about the truck. Appellant testified that he had not stolen the truck and was not driving it when it was wrecked. He was walking along the road about one mile from Morehead as the truck approached, and he "thumbed...
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