Burton v. Com.
| Decision Date | 27 June 1969 |
| Citation | 442 S.W.2d 583 |
| Parties | Delbert BURTON and Everett Ray Durham, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Thomas D. Shumate, Shumate & Shumate & Flaherty, Richmond, for appellant.
John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
Appellants, Delbert Burton and Everett Ray Durham, appeal from a judgment of the Rockcastle Circuit Court sentencing them to two years in the pentitentiary pursuant to a jury verdict finding them guilty of breaking into the dwelling house of one Eugene Thomas with intent to steal. KRS 433.180. Their sole contention is that the evidence was insufficient to support a conviction.
The residence of Thomas was located on a private lane or road leading off the Scaffle Cane Road about six miles south of the city of Berea. A neighbor, Bern Potter, lived on the same private lane between Thomas and the Scaffle Cane Road. On the evening of December 4, 1966, as Thomas and his wife arrived at home in their automobile they encountered a red and white 1959 model Ford automobile with an Ohio license plate emerging from their yard. According to Thomas' estimate, it was then about 7:30 P.M., though both he and his wife and their neighbor Potter testified it was not yet dark, but only 'dusky dark.' The lights of the Ford were not burning, but were turned on as the two cars approached each other. Thomas stopped, whereupon the Ford pulled alongside him on the driver's side and also stopped. It was occupied by two men, whom Thomas later identified as the appellants. The driver of the Ford (according to Thomas, the appellant Durham) asked Thomas where some person lived, and told him they had been knocking on the door of the Thomas house seeking information in that respect. Thomas had never heard of the person for whom the intruders purported to be searching, so they drove on away. When the Thomases got out of their automobile and went to the house they discovered that it had been forcibly entered and ransacked and that a .22 pistol and a pair of cufflinks had been stolen. They repaired at once to Berea, picking up neighbor Potter as they went, and reported the incident to the police. Within a very short time thereafter, between 8:30 and 9:00 P.M., a city police officer observed the appellants traveling southward through Berea in a red and white 1959 model Ford with an Ohio license plate and arrested them. The car was searched, but none of the stolen articles was found.
Potter testified that he saw a red and white 1959 model Ford go past his house in the direction of the Thomas home at about dusk on the evening of December 4, 1966, and come back out 15 or 20 minutes later, Thomas himself having passed by in the interim. Both Thomas and Potter testified that they saw the two men in the Ford well enough to identify them,...
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