Carmen v. Com.

• Decision Date: 16 February 1973
• Citation: 490 S.W.2d 744
• Parties: Billy CARMEN a/k/a William B. Smith, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 744

490 S.W.2d 744

Billy CARMEN a/k/a William B. Smith, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 16, 1973.

David Kaplan, Kaplan, Lyon & Brady, Louisville, for appellant.

Ed W. Hancock, Atty. Gen., Guy C. Shearer, Asst, Atty. Gen., Frankfort, for appellee.

MILLIKEN, Justice.

Appellant Billy Carmen, also known as William Bud Smith, was charged with breaking and entering the storeroom of the Friedman Company with intent to steal, and possessing a burglar's tool with the intention to use it burglariously. A verdict of guilty was entered on both counts fixing Carmen's punishment at one year for storehouse breaking and two years for possession of burglary tools. Carmen's appeal raises questions concerning the sufficiency of the evidence to justify a finding of guilt and alleges error in the charge to the jury on reasonable doubt.

Two witnesses testified during the course of trial. They were City of Louisville Police Officer Bernard Lammers and Nelson Johnson, manager of the Friedman Company, 213 South Third Street, Louisville. Defendant Billy Carmen did not testify, nor were any witnesses called to testify in his behalf.

The record indicates that Third Street is one way southbound and that the Friedman Company, a clothing store, is situated on the east side of the street. The front of the store faces Third Street and contains an open inverted entranceway which is approximately twelve feet in length and twelve feet in width. There is a small display window at the end of the entranceway and a north door and south door which allow entry into the store itself.

Officer Lammers testified that he and a fellow police officer, Frank Neckar, were patrolling their beat by car on Sunday, November 15, 1970. Lammers was driving. At approximately five minutes to four that afternoon they received a dispatch to go to the Friedman Store where 'a break-in was in progress.' Another police car was also dispatched to the scene.

Lammers and Neckar arrived at the clothing store about five minutes later. Lammers observed defendant Billy Carmen 'walking out of the Friedman's Store through the doorway' with a tire tool in his hand. Officer Lammers further testified that when he first observed defendant 'he (Carmen) was inside the store itself' and when appellant 'saw the police car, he immediately walked through the door which was standing open.' The door referred to by Lammers was on the north side of the open entranceway. When defendant entered the entranceway from the store 'he bent down and laid the tire tool on the ground and then proceeded to walk briskly south on Third Street.' He was arrested by Officer Neckar in Lammers' presence. Defendant was accompanied by a man named Calvert who followed defendant through the door and was arrested by two other police officers.

Following the arrest, Lammers and Neckar returned to the store and noticed that the door had been forced open. 'The wooden frame in the immediate vicinity of the door lock was splintered and the wood was torn.' Lammers related that he knew from past experience that the store was closed on Sundays. The tire tool, a lug wrench, was picked up at the scene by the officers and introduced as an exhibit at the trial.

Nelson Johnson, manager of the Friedman Company, testified that the store was not open for business on Sundays. He related that it is his responsibility to lock the store and that he had for years followed the practice of locking the north and south doors and shaking both from outside the store to assure their secureness. He recalled locking the store on Saturday, November 14, 1970, after all the other employees had left.

On Sunday, the following day, Johnson received a telephone call and was told that someone had 'jimmied the door.' He went to the store and found that the north door had been 'jimmied' open. Upon examining the interior of the store he discovered several leather jackets on the tables and floor. Johnson related that these jackets had been put in boxes and placed on shelves prior to closing the store on Saturday.

At the close of the testimony defendant moved for a directed verdict of acquittal. The motion was overruled. Defendant then objected to the instruction on the definition of reasonable doubt which read as follows:

'No. 4. The defendant is presumed to be innocent of the charges herein until his guilt has been established by the proof beyond a reasonable doubt, and if, upon the whole case, you have a reasonable doubt of the defendant having been proven guilty, you will find him not guilty.

'You are further instructed that a reasonable doubt is a sincere doubt, a real doubt, in that you must ask yourself not whether a better case might have been proven, but whether, after hearing all the evidence, you actually doubt that the defendant is guilty.'

The objection was overruled and the instructions were presented to the jury. The jury returned a verdict of guilty on both counts. Defendant's subsequent motion for a new trial was overruled and he brought this appeal.

Appellant bases his contentions that it was error to overrule his motions for a directed verdict and new trial on two grounds. These are that the corpus delicti was never proven beyond a reasonable doubt and that the law and evidence are not...