Ellison v. Commonwealth

• Decision Date: 25 January 1921
• Citation: 190 Ky. 305,227 S.W. 458
• Parties: ELLISON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

227 S.W. 458

190 Ky. 305

ELLISON v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 25, 1921

Appeal from Circuit Court, Boyle County.

H. C Ellison was convicted of knowingly receiving stolen property and he appeals. Affirmed.

J. S Owsley, of Stanford, and Bagby & Huguely and J. W. Harlan, all of Danville, for appellant.

Chas. I. Dawson, Atty. Gen., and W. P. Hughes, of Frankfort, for the Commonwealth.

HURT C.J.

The appellant, Ellison, was convicted, upon trial, on an indictment which accused him of guilt of the crime of knowingly receiving stolen property, denounced by section 1199, Ky. Stats. The venue of the crime was laid by the indictment in Boyle county, and the stolen property, which was alleged to have been received by the appellant, were certain boxes of cigars of the value of more than $20, and that same had been stolen from the Cincinnati, New Orleans & Texas Pacific Railroad and Southern Railway Company, which were common carriers, and which had, at the time of the larceny, the cigars in their possession for transportation and delivery; they being operated as one corporation. The trial resulted in a verdict of guilty against the appellant, and the fixing of his punishment at confinement in the penitentiary for one year, and a judgment was rendered in accordance with the verdict. The appellant's motion for a new trial having been overruled, his dissatisfaction with the judgment has resulted in an appeal.

Several grounds for a new trial were assigned, but, when considered, they resolve themselves into the following:

First. The court erred in overruling a demurrer to the indictment.

Second. The court erred in submitting the case to the jury, because there was no evidence conducing to prove appellant's guilt.

Third. The court erred in instructing the jury.

Fourth. The court erred in the admission and rejection of testimony.

(a) Touching the first ground for a new trial, the record fails to disclose that appellant, ever at any time, offered a demurrer to the indictment.

(b) At the close of the testimony for the commonwealth, and at the close of all the testimony, the appellant moved the court to direct a verdict in his favor. These motions were overruled. The only basis which could have existed for such motions, and which would have justified their being sustained, was that when all the facts, which the evidence conduced to prove, and the reasonable inferences which could be drawn therefrom were considered, there was yet no evidence of the appellant's guilt as charged in the indictment, or at least no evidence of one or more of the elements which were essential to constitute the crime of which he was convicted. To constitute the crime of knowingly receiving stolen property, under section 1199, Ky. Stats., the property received must theretofore have been the subject of a larceny perpetrated by one, other than the party accused of having feloniously received it; the reception must have been with knowledge of the recipient that the property had been stolen; and the reception must have been accompanied with the intention to deprive the owner of it. That the property which appellant was accused of receiving had been stolen from the common carriers mentioned, and that they had the property in their possession for transportation and delivery, is amply sustained by the evidence, and no further attention will be given to that phase of the case. The evidence tends to show that the car, from which the cigars were stolen, arrived in the yards at Danville, in the afternoon of the 25th day of April, and the larceny occurred between that time and the early morning of the 26th day of April, and on the afternoon of the 26th, between 50 and 100 boxes of the cigars, which had been stolen, were found to be in a room which appellant was at that time occupying, in the third story of a building, upon a street in Danville. The appellant admits that he received 10 boxes of these cigars in Lincoln county, but it is insisted for him that he did not receive any of the cigars in Boyle county, where the indictment alleges the reception, and within the jurisdiction of the Boyle circuit court, wherein the trial and conviction was had, and that there was an entire failure of evidence which proved that he received the cigars, in any way, in Boyle county, or that he had any knowledge of their having been stolen at the time he received them.

It must be conceded that, although the appellant may have known the stolen character of the cigars, he was in no wise guilty of the crime of knowingly receiving stolen property, until he received them, and a failure to prove that he received them in Boyle county, or that an act was done by appellant in Boyle county, the direct effect of which was the reception of the cigars, would have been fatal to the prosecution, and entitled the appellant to a directed verdict in his favor. The crime of knowingly receiving stolen property is a substantive crime, complete in itself, and is not, under the statute, an accessorial act to a larceny, and the place of its commission is not controlled by the place of the larceny, but is committed where the stolen property is received, with knowledge of its character. Allison v. Commonwealth, 83 Ky. 254; Roberson, § 448. If the act of knowingly receiving stolen property was one accessorial to a larceny, the acts would be those of an accessory after the fact, and the same rule would apply as to jurisdiction. Tully v. Commonwealth, 13 Bush, 142.

Hence it becomes necessary to examine the evidence to determine whether there was evidence to support the verdict to the effect that appellant received the cigars, or any of them, in Boyle county, or any act was done by appellant in such county, the effect of which was the reception of the cigars elsewhere, with the knowledge at the time of their reception of the stolen character of the cigars. Only two witnesses deposed to any thing which occurred in Boyle county concerning the connection of the appellant with the cigars, and these witnesses are the appellant, himself, and his cousin, McKinsie, who was offered by the prosecution, and deposed that the appellant was an extra brakeman upon the railroad, and occupied, while in Danville, an upstairs room, which one Virgil Davis also occupied with him. About the 26th or 27th of April, or near that time, the witness met appellant, who apparently had just returned from a trip upon the railroad, and accompanied him to his room. There he observed, under the bed and covered up by the quilts, together, between 50 and 100 boxes of cigars. Appellant made no comment concerning the cigars, but about that time Davis came into the room, and witness inquired of him about the cigars, and Davis said that they were his, but made no statement as to where, or when, or how he had procured them. While the cigars remained there, witness and appellant each smoked four or five of them. The following morning Davis, who had an automobile in his possession which was owned by some one else, inquired of witness and appellant if they did not desire to take a ride, and they having accepted the invitation, Davis wrapped the cigars in a quilt, belonging to appellant, and carrying them down the stairway to the door, put them in the automobile, they being still concealed by the quilt. Then he, witness, and appellant got into the machine, and Davis drove them to Waynesburg, in Lincoln county, about 20 miles away. There Davis entered a store for the purpose of selling the cigars, but, failing to find the keeper, he returned to the car, and said that he would have to take them back to Danville, when the appellant said that the barn at his father's dwelling, about 1 1/2 miles away, would be a good place to put them. They then drove to the home of appellant's father, and Davis put the cigars in the barn, or at least put them somewhere out of the automobile. They had dinner...