Etherton v. Com.

• Court: Supreme Court of Kentucky
• Citation: Etherton v. Com., 335 S.W.2d 899 (Ky. 1960)
• Decision Date: 20 May 1960
• Parties: Kenneth Wayne ETHERTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 899

335 S.W.2d 899

Kenneth Wayne ETHERTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 20, 1960.

W. Gordon Iler, George V. Triplett, Owensboro, for appellant.

John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.

WADDILL, Commissioner.

Appellant was sentenced to life imprisonment following his conviction of storehouse breaking (KRS 433.190) and of being an habitual criminal (KRS 431.190). In seeking to reverse the judgment, appellant contends that the court erred: (1) In overruling his motion for a directed verdict of acquittal; (2) in allowing the jury to consider incompetent evidence; (3) in failing to instruct the jury on the whole law of the case.

During the night of March 12, 1959, a liquor store located in the City of Owensboro was forcibly entered and a large quantity of whiskey and gin was stolen. When the police arrived at the scene of the breakin they were informed that the culprit was wearing a tan jacket and was carrying a box when he ran from the liquor store. While searching behind a building, an officer saw appellant lying on the ground beside a case of gin which was identified as having been stolen from the liquor store. Appellant fled when the officer approached him, but he was soon caught by the pursuing police. At the time appellant was apprehended he was wearing a brown jacket. When questioned concerning why he fled from the officers, appellant stated that he was afraid the police would arrest him and would subject him to physical mistreatment. The events recited herein were established at appellant's trial by the testimony of the witnesses introduced in behalf of the Commonwealth. Appellant's defense was an alibi.

In order to sustain a conviction in a criminal case it is not necessary that the evidence should exclude every possibility of a defendant's innocence. It is sufficient if all of the circumstances when considered together point unerringly to his guilt. Hendrickson v. Commonwealth, Ky., 259 S.W.2d 1; Bolen v. Commonwealth, 303 Ky. 611, 198 S.W.2d 309; Taylor v. Commonwealth, 293 Ky. 823, 170 S.W.2d 903. While the case against the appellant rests upon circumstantial evidence, the proven chain of events was sufficiently incriminating to justify a submission to the jury of the question of appellant's guilt or innocence.

Appellant further urges that the court erred in allowing the introduction of incompetent evidence over his objections. This contention is not reviewable on appeal because it was not relied upon in the motion and grounds for a new trial. Lair v. Commonwealth, Ky., 330 S.W.2d 938; Philpot v. Commonwealth, Ky., 247 S.W.2d 499.

It is further contended that instruction No. 2 was prejudicially erroneous because it authorized a conviction under the habitual criminal act without requiring the jury to find that the crime of which appellant was convicted in 1957 was committed after his conviction of a felony in 1952. Cases from this jurisdiction support appellant's contention. See Sherley v. Commonwealth, Ky., 322 S.W.2d 124, 126; Gossett v. Commonwealth, Ky., 302 S.W.2d 380; Gossett v. Commonwealth, Ky., 295 S.W.2d 338; Denham v. Commonwealth, 311 Ky. 320, 224 S.W.2d 180; Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728.

In Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728, 729, a conviction under our habitual criminal statute was reversed because of faulty instructions, and in the course of the opinion it was said:

'Our interpretation of the habitual criminal statute, Section 1130, [now KRS 431.190] has consistently been that the previous crimes and the one with which the accused is presently charged must have been committed progressively after each...