Davidson v. Commonwealth

• Citation: 219 Ky. 251
• Parties: Davidson v. Commonwealth.
• Decision Date: 25 March 1927
• Court: United States State Supreme Court — District of Kentucky

219 Ky. 251

Davidson v. Commonwealth.

Court of Appeals of Kentucky.

Decided March 25, 1927.

1. Larceny. — Evidence held to sustain conviction for taking and stealing two bales of wire fencing.

2. Larceny. — It is incumbent on one in whose possession stolen property is found to explain how he came by it.

3. Larceny. — Possession of stolen property, which is not explained satisfactorily to the jury, may alone be sufficient to sustain conviction for larceny.

4. Larceny. — Possession of stolen property, unsatisfactorily explained, is alone sufficient to justify submission of question of larceny to jury.

5. Criminal Law. — In prosecution for larceny, testimony of complaining witness and others, obtained by entering defendant's barn without his consent or without a search warrant, held not inadmissible; none of the parties having been an officer at the time of the entry.

6. Larceny. — Instruction authorizing conviction for larceny, if defendant feloniously stole and carried away property involved for the purpose of permanently depriving the owner of the possession thereof, held erroneous for failure to require finding that possession was taken without owner's consent.

7. Larceny. — Instruction authorizing conviction, if defendant feloniously stole property involved for the purpose of permanently depriving the owner of possession thereof, held erroneous for failure to require finding that defendant meant to convert the property to his own use.

Appeal from Warren Circuit Court.

THOMAS, THOMAS & LOGAN for appellant.

FRANK E. DAUGHERTY, Attorney General, and MOORMAN DITTO, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Reversing.

Appellant was charged with grand larceny, committed by feloniously taking and stealing two bales of wire fencing from Marion Sledge, of greater value than $20.00, with the felonious intention of converting the same to his own use and depriving Sledge of the same.

On his trial he was found guilty and sentenced to two years' imprisonment, and this appeal results.

The evidence discloses that Sledge in 1925 bought several bales of wire and placed them in his barn lot, and placed smaller wire around the stay wires of the bales for the purpose of identification. Some time later two of the bales were missing. After that he was at the home of Davidson upon other business, apparently not connected with any suspicion he had that Davidson had taken the wire. While there and near the barn of Davidson, he looked through the crack of an inclosed shed and saw some bales of wire which looked like that he had lost; the wire he saw was more or less concealed by a buggy which was over or about it, and possibly some other material. He went into the barn and recognized the wire, and thereafter took two neighbors with him and they all recognized it from the identifying marks theretofore put on it. Because of his other business with Davidson he did not upon the first occasion disclose to him that he claimed the wire; but upon a subsequent trip, after he had settled his business with Davidson, he asked him about the wire and asserted ownership of it.

Davidson told two or three conflicting stories about the wire and from whom he had gotten it, none...