Collins v. Commonwealth

• Decision Date: 10 March 1894
• Citation: 25 S.W. 743
• Parties: COLLINS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

25 S.W. 743

COLLINS v. COMMONWEALTH.

Court of Appeals of Kentucky.

March 10, 1894

Appeal from circuit court, Breathitt county.

"Not to be officially reported."

James Collins was convicted of arson, and appeals. Reversed.

W. W Vaughan and G. W. Flecnor, for appellant.

W. J Hendrick, for the Commonwealth.

HAZELRIGG J.

The appellant was jointly indicted with one Armstrong for burning the dwelling house and residence of Reuben McQuinn, and on his second trial was found guilty, and sentenced to the penitentiary for 10 years. McQuinn lived in Quicksand, in Breathitt county, in a two-story frame house, with log kitchen attached to the rear. In the upper part of the building was stored the family bacon, and the theory of the prosecution is that the meat was stolen, and the building fired in order to hide the theft. There had been fire in the kitchen stove on the evening before the house was discovered to be in flames, but McQuinn testifies that there was no fire in the stove or house after dark. The house was discovered afire at about 4 o'clock on the morning of May 20th last. The proof of the state connecting the accused with the crime if one was committed, was wholly circumstantial, unless his alleged statements to the sheriff, Combs, be regarded as a confession of guilt. The commonwealth proved that certain tracks found near the creek were made by a person wearing No 11 shoes, or about that size, and the shoes of the accused were attempted to be put on these tracks. According to some of the proof, the shoes fit in precisely, but others proved that they missed fitting by at least one-fourth of an inch. All the witnesses agreed that the bottom of the sign was smooth, but that the soles of the shoes had a row of shot-head tacks in them, and, when they were pressed down in the tracks, the impression of the tacks were plainly visible. This was attempted to be accounted for by the commonwealth upon the theory that the accused, after committing the crime, had driven the tacks in his shoes, and this contention was supported by showing only that the tacks looked new; but the shoes were also comparatively new. It must be admitted that this proof rather unsatisfactorily establishes the guilt of the accused, if it does so at all; and it is more than probable that, but for the testimony of the sheriff, Combs, there could have been no conviction. When the accused was on the witness stand, he was asked by the commonwealth if he had had a conversation with the sheriff, Combs, at the jail, during the last June term of court, with reference to the burning of the house or the stealing of the meat. He answered that he did not remember; that, at the time, he was in a bad condition from having been shocked by the blowing up of a building close by the jail with dynamite, and was under the treatment of two physicians. The accused introduced other testimony tending to show that he could not have committed the crime; and, after closing his proof, the commonwealth was permitted, over his objection, to call the sheriff for the first time, and prove by him as follows: "One day at the jail, during the June term, 1893, of this court, A. H. Howard and myself went down to the jail, and I think in the presence of Hiram Centers, the jailer, we had a conversation with defendant, Collins. I said to Jim, the defendant, that 'if you know anything about who burned the house, or stole the meat, you had better come out and tell it, if you did not have anything to do with it yourself.' He went on and talked in a roundabout way, and gave some names, but what he said did not amount to anything, and I said to him: 'Jim, they are not going to let you out on such stuff as this. If you know anything about who burned the house, come out and tell the whole thing.' He then said that he did...