Davis v. Commonwealth
| Citation | 230 Ky. 589,20 S.W.2d 455 |
| Parties | DAVIS v. COMMONWEALTH. |
| Decision Date | 24 September 1929 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Graves County.
Herman Davis was convicted of grand larceny, and he appeals. Affirmed.
B. C Seay, of Mayfield, for appellant.
J. W Cammack, Atty. Gen., and J. M. Gilbert, Asst. Atty. Gen., for the Commonwealth.
Herman Davis was indicted for robbery. He was tried on June 20 1924, found guilty of grand larceny, and his punishment fixed at one year in the penitentiary. Judgment was not then rendered upon the verdict. A motion for a new trial was filed and overruled during the term at which the verdict was rendered. At the same time an appeal to this court was granted, and the official stenographer was directed to make a transcript of the evidence. A bill of exceptions was duly filed and approved on that day, and the record was filed in this court August 25, 1924. That appeal was dismissed on motion of the Attorney General, because there was no judgment entered pursuant to the verdict of the jury.
Davis was then brought before the court on December 24, 1925, at which time he submitted additional motion and reasons for a new trial. The court overruled the motion and pronounced judgment in accordance with the verdict of the jury. Davis then gave bond for his appearance, and filed a new record in this court on February 24, 1926, showing merely the steps that had been taken subsequent to the dismissal of the appeal. On January 2, 1926, an order was made in the circuit court, entitled "Bill of Exceptions No. 1," again making the original bill of exceptions a part of the record. The old record in this court was, on motion of the appellant placed with the present record. The Attorney General again made a motion to dismiss the appeal, because the new transcript was not filed within 60 days after the rendition of the judgment on December 24, 1925. The record was then lost, and has been supplied only recently. In view of the fact that the court made an order on January 2, 1926, apparently at the same term of court at which the judgment was pronounced, we conclude that the record was filed in time, and the case is properly here. The motion to dismiss the appeal is denied.
On the merits the appellant contends that the court erred in overruling a demurrer to the indictment, in the instructions to the jury, in rendering a judgment subsequent to the term at which the verdict was returned, and in refusing a new trial because the verdict was contrary to the manifest weight of the evidence and wholly unsupported by it.
The indictment charges the crime of robbery committed with force and arms, unlawfully and feloniously, and contains every essential ingredient of the offense. Breckenridge v. Commonwealth, 97 Ky. 267, 30 S.W. 634. The argument of appellant is that the indictment is uncertain as to the intent, and duplicitous in its effect; but it is not subject to that criticism. It specifically charges that the defendant did, against the will and consent of Gentry Carson, with force and arms, take, steal, and carry away $25 of his lawful money, with the felonious and fraudulent intent then and there to convert the same to his own use, and to deprive permanently the said Gentry Carson of his property. Blanton v. Commonwealth, 58 S.W. 422, 22 Ky. Law Rep. 515. The demurrer to the indictment was properly overruled.
The complaint of the instructions is that they permitted a conviction of grand larceny on an indictment for robbery. Robbery includes the offense of grand larceny (Criminal Code §§ 262, 263), and the punishment for the latter is less severe. It was proper to give instructions...
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