Davis v. Com.

• Decision Date: 23 January 1900
• Citation: Davis v. Com., 54 S.W. 959 (Ky. Ct. App. 1900)
• Parties: DAVIS v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

54 S.W. 959

DAVIS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

January 23, 1900

Appeal from circuit court, Jessamine county.

"Not to be officially reported."

M. P Davis, alias John G. Hooper, was convicted of the offense of robbery, and he appeals. Reversed.

Jno. H Welch, for appellant.

Clifton J. Pratt, for the Commonwealth.

DU RELLE, J.

Having been convicted under an indictment for robbery, appellant has brought his case here for revision upon the sole ground that "the verdict of the jury was contrary to the law, and contrary to the evidence adduced at the trial." No complaint is made of the instructions given, and by the second instruction the jury were told that there was not sufficient evidence to convict the defendant of robbery by forcibly taking the money from Parton, the prosecuting witness; and unless they believed from the evidence, beyond a reasonable doubt, that the defendant obtained the money from Parton by the use of threats, menaces, or demonstrations of violence, such as to induce in the mind of a person of ordinary courage the fear of immediate injury to his person and such as did create a fear of immediate injury to his person in the mind of Parton at the time the money was taken they could not convict, although they might believe that the defendant, after the taking of the money, used threats or made demonstrations of violence in order to retain it. So the question is, solely, whether there was any evidence to go to the jury of threats, menaces, or demonstrations of violence.

It appears from the testimony for the commonwealth, that appellant met Parton on circus day in Nicholasville, and after some conversation, offered to employ the latter to scatter some advertising bills in the county; that this was agreed to by Parton; and the two started after the bills that on the way appellant stopped at an alley, and sat down on a buggy shaft, and took out some cards, which he showed Parton, and called his attention to a marked card, which he said was the one to draw to win. At this time, it appears from Parton's testimony, a negro man came up, who, as well as appellant, appears to have been following the circus, and asked if they "had saw a man pass there a-riding of a white horse," to which appellant responded, "No," but there was a chance to make the value of the horse. Being shown the cards, the negro offered to bet $10 that no one could draw the marked card. Appellant said he would bet "the old man could draw it," meaning Parton. The negro put up $10 and appellant $4. The negro refused to bet $10 against $4. Appellant said $4 was all he had, and turned to Parton, saying, ...