Daugherty v. Com.
| Decision Date | 31 October 1978 |
| Citation | 572 S.W.2d 861 |
| Parties | Gary W. DAUGHERTY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack Emory Farley, Public Defender, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Victor Fox, Asst. Attys. Gen., Frankfort, for appellee.
Gary W. Daugherty appeals from a judgment sentencing him to 20 years' imprisonment pursuant to a verdict finding him guilty of first-degree burglary (KRS 511.020), theft by unlawful taking (KRS 514.030), and of being a second-degree persistent felony offender (KRS 532.080).
After spending a weekend in Owensboro, Diane Boone, appellant's sister, and her husband Robert returned to their Henderson apartment to discover that a window had been broken and a tape player and five guns were missing. Prior to this weekend, Daugherty had kept some clothes in the couple's living room and occasionally slept there. Daugherty did not have permission to be in the apartment when the Boones were not present, and he was not given a key, although the couple did indicate they were planning to have one made for him.
Approximately one week later, appellant, while in police custody for drunkenness, made separate statements to police detectives from Owensboro and Henderson, respectively, in which he admitted breaking the apartment window in order to gain entrance to change clothes. He told both detectives that he was accompanied by Larry Roberts and Hugh Dino, although he was not sure how they got into the apartment. A few hours later, according to Daugherty, he discovered that several guns had been hidden in his car. Recognizing the guns as belonging to his brother-in-law, appellant told Roberts and Dino to get the guns out of his car.
Appellant's initial contention is that the trial court erred in overruling his motion for a directed verdict on the burglary and theft charges. As to the former count, appellant argues that the case should not have gone to the jury since the prosecution failed to prove he was in the Boone apartment unlawfully, an essential element of first-degree burglary. We disagree. The evidence is at best equivocal as to whether Daugherty had reason to believe he had permission to be in the apartment when the Boones were away, but regardless of whether he had such permission, he certainly did not have the owners' consent to gain entry by breaking a window. Since from this evidence it would not be unreasonable for the jury to find appellant guilty of first-degree burglary, that count was properly submitted to the jury. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). Applying the same standard to the theft count, we conclude the trial judge was correct in overruling the motion.
The second assignment of error concerns the instruction given by the trial court regarding complicity:
A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
(a) solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
(b) aids, counsels, or attempts to aid such person in planning or committing the offense; or
(c) having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
Appellant's position is that it was improper to instruct on complicity when the indictment charged him alone, as principal, for the crimes committed. Regardless of the merits of this argument, these grounds, being different from those asserted in the court below, are not...
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Carrier v. Com.
...grounds for objection on appeal were not properly presented as they differed from the grounds asserted at trial); Daugherty v. Commonwealth, Ky., 572 S.W.2d 861 (1978) (where different grounds of error from those presented to trial court are not properly preserved); Richardson v. Commonweal......
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Houston v. Com.
...law, a conviction of complicity can be obtained under an indictment charging a defendant only as a principal, but see Daugherty v. Commonwealth, Ky., 572 S.W.2d 861 (1978); for Appellant did not request an instruction on that offense. The only Kentucky case holding that criminal facilitatio......
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State v. McHenry
...726 A.2d 142 (1999) ; Donophan v. State , 424 A.2d 301 (Del. 1980) ; Williams v. State , 517 So.2d 681 (Fla. 1988) ; Daugherty v. Commonwealth , 572 S.W.2d 861 (Ky. 1978) ; State v. Crews , 968 S.W.2d 763 (Mo. Ct. App. 1998) ; Merritt , 247 N.J.Super. 425, 589 A.2d 648 ; State v. Luna , 99 ......
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Crosby v. State
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