Combs v. Commonwealth

• Citation: 47 S.W.2d 725,242 Ky. 793
• Parties: COMBS et al. v. COMMONWEALTH.
• Decision Date: 15 March 1932
• Court: Kentucky Court of Appeals

47 S.W.2d 725

242 Ky. 793

COMBS et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

March 15, 1932

Appeal from Circuit Court, Letcher County.

Henry Combs and Riley Combs were convicted of storehouse breaking and they appeal.

Affirmed.

Joe Hall, of Whitesburg, for appellants.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

RICHARDSON J.

The Cameo Coal Company on a certain night in January, 1931, was the owner of a storehouse in Letcher county, Ky. when it was broken into and a lot of merchandise was stolen therefrom. The appellants and Buster Hensley were indicted therefor charged with the crime of storehouse breaking. Hensley entered a plea of guilty and was awarded punishment by a jury. The appellants entered pleas of not guilty, and, on their trial, were convicted, and the punishment of each was by a jury fixed at confinement in the penitentiary for a period of five years. They appeal.

For reversal, they insist the evidence does not authorize the verdict of the jury; that the court permitted incompetent evidence to go to the jury and erred in his instructions to the jury.

A search warrant was obtained by the person in charge of the store of the Cameo Coal Company, which was executed by the sheriff. The search warrant directed the sheriff to search the house used and occupied by Wiley Combs as a residence. Wiley Combs was the father of the appellants. In the execution of the search warrant the building and premises described in it, at the time the warrant was executed, were used and occupied by Wiley Combs as a residence. The sheriff found merchandise in his residence, and also on, about, and near, the premises. The president of the Cameo Coal Corporation identified the articles found as the property of the corporation. Other witnesses identified the property in their possession which they claim they bought from one or the other of the appellants. This property was also identified by the president of the corporation as the property of the corporation. A taxi driver, on the night the store was broken into, conveyed the appellants and Hensley in his taxi to within a short distance of the store, when they directed him to stop and wait for them, which he claims he did. The appellants went away and shortly returned with sacks filled with something; they made a second trip and returned with something not at the time known to him. Thereafter he returned with the appellants and Buster Hensley to the home of Wiley Combs, where they unloaded the same articles. For the service of himself and taxi he was paid that night, by one of the appellants, a pair of pants of the value of $2.

Buster Hensley prior to the trial of the appellants made a written confession of his connection with the robbery of the Cameo Coal Corporation's store. His confession corroborated Dishman, the taxi driver, in every respect. The appellants and Buster Hensley in their testimony denied the appellants had any connection with the breaking into the store and carrying away the property of the Cameo Coal Corporation. The father and mother of the appellants and others established an ideal alibi for the appellants, which completely exonerated them of all participation in the commission of the crime.

The evidence was conflicting, and it was a question for the jury to determine the guilt or innocence of the appellants. Cravens v. Com., 205 Ky. 738, 266 S.W. 625; Hall v. Com., 231 Ky. 473, 21 S.W.2d 799; Davis v. Com., 230 Ky. 589, 20 S.W.2d 455. The testimony of the accomplices, Hensley and Dishman, was abundantly corroborated. "'Corroboration of an accomplice' means evidence other than, and independent of, the testimony of the accomplice, which tends to prove the existence of some fact which really connects the defendant with the commission of the offense charged in the indictment, and unless there is other evidence of that character, independent of the testimony of the accomplice, then there is no corroboration, and the defendant is entitled to a peremptory instruction. Schleeter v. Com., 218 Ky. 72, 290 S.W. 1075." Mitchell v. Com., 240 Ky. 258, 42 S.W.2d 305, 306.

The immediate presence of the stolen property in the place of abode of the appellants, and the sale by them of a portion of the stolen articles, were sufficient corroboration of the accomplices. Cox v. Com., 9 S. W. 804, 10 Ky. Law Rep. 597; Short v. Com., 76 S.W. 11, 25 Ky. Law Rep. 451; Branson v. Com., 92 Ky. 330, 17 S.W. 1019; Anderson v. Com., 35 S.W. 542, 18 Ky. Law Rep. 99; Owens v. Com., 181 Ky. 257, 204 S.W. 162; Hutchcraft v. Com., 195 Ky. 591, 242 S.W. 580; Riggsby v. Com., 232 Ky. 226, 22 S.W.2d 624.

The appellants urge that the search warrant did not authorize the search of the premises of Wiley Combs, that the affidavit made for its issuance was insufficient to meet the requirements of section 10 of our Bill of Rights. The search warrant on its face is sufficient and valid. The commonwealth introduced it as a part of the testimony of the sheriff who executed it. On its introduction, being valid on its face the burden shifted to the appellants to show that it was issued on an improper or insufficient affidavit. Kidd v. Com., 200 Ky. 356, 254 S.W. 1057. It is not shown by the bill of exceptions that the affidavit was produced during the progress of the trial. However, an order is found in the clerk's record showing that the affidavit upon which the search warrant was issued was filed in court, whether before, during, or after the trial does not appear. The property of...