Eubank v. Commonwealth

• Citation: 210 Ky. 150
• Parties: Eubank v. Commonwealth.
• Decision Date: 05 June 1925
• Court: United States State Supreme Court (Kentucky)

210 Ky. 150

Eubank v. Commonwealth.

Court of Appeals of Kentucky.

Decided June 5, 1925.

1. Indictment and Information — Indictment for Conspiracy to do a Felonious Act Held to Charge an Offense. — Indictment under Ky. Stats., section 1241a-1, for conspiracy to do a felonious act held to charge a public offense, and "ejusdem generis doctrine," which is merely rule of construction followed in effort to ascertain legislative intention, would not be adopted to confine statute to that class of offenses specifically enumerated only, in view of obvious conclusion that legislature intended just what it said.

2. Conspiracy — Evidence Sufficient to Sustain Conviction. — In prosecution for conspiracy against one who was robbed while in possession of another's money by his alleged confederates, evidence held to sustain conviction.

3. Criminal Law — Accused Cannot Complain of Too Favorable Instructions. — Accused cannot complain because instructions required jury to believe more than necessary to convict.

4. Conspiracy — Necessary Elements of Conspiracy Indicated. — That accused conspired with another to take money of greater value than $20.00, without knowledge or consent of owner, and with fraudulent intent to deprive him of it and permanently convert it to his own use, would be sufficient to render him guilty of conspiracy under Ky. Stats., section 1241a-1.

5. Witnesses — Former Statement Denying Ownership Properly Admitted, where Testimony of Witness was Assailed as Recent Fabrication. — Although, as general rule, testimony as to ownership cannot be corroborated by proof of previous similar statements, where witness was assailed on ground that his denial of ownership was recent fabrication and that he had motive for testifying falsely, former statement denying ownership, made when motive did not exist, was properly admitted.

6. Witnesses — Testimony in Contradiction Properly Excluded in Absence of Foundation. — Exclusion of testimony, that witness had stated, after day of so-called robbery, that stolen money was accused's, was properly excluded, in absence of a foundation for the contradiction.

7. Criminal Law — New Trial Not Granted for Newly Discovered Evidence which was Merely Cumulative and Tended to Impeach. — In prosecution for conspiracy to rob, application for new trial for newly discovered evidence, consisting merely of testimony that state's witness had said that it was accused's money which was stolen, and which was merely cumulative and tending to impeach that witness was properly refused.

Appeal from Clark Circuit Court.

W.B. WHITE, RODNEY HAGGARD (O'REAR, FOWLER & WALLACE, of counsel), for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Affirming.

The appellant was found guilty of conspiracy to commit a felony, and his punishment fixed at two and one-half years' confinement in the penitentiary. On February 20, 1924, appellant hauled a truck load of tobacco from Montgomery county to Lexington, where he delivered it to the warehouse. The next day he hauled a second load which was delivered to the same warehouse. These two loads of tobacco when sold, brought $655.02. With the appellant at the time of the sale was a young negro man named Stafford Hutsell, who says he owned the tobacco, but who says that appellant induced him to allow the tobacco to be sold in the name of appellant and assured him that if he would do so, it would bring more money. After the tobacco was sold, appellant cashed the check and gave the negro (appellant says loaned him) $5.00.

By various means, appellant delayed their departure from Lexington until late in the evening, in fact, the street lights had been lighted before they left, and on their way home, after they had passed through Winchester and were still in Clark county, an automobile drove past their truck, wheeled across in front of them and stopped. Appellant stopped the truck. Two masked men got out of the automobile, drew pistols and demanded this money. Appellant had the money, and he surrendered it. This so-called robbery was carried out in true motion picture style. A few days thereafter the following indictment was returned:

"The grand jury of Clark county in the name and by the authority of the Commonwealth of Kentucky accuses Richard G. Eubank, Asa Eubank, Roger Green and Guy Barnes of the crime of unlawfully, willfully and feloniously confederating or banding themselves together for the purposes of doing a felonious act committed as follows, viz.: That said Richard G. Eubank, Asa Eubank, Roger Green and Guy Barnes on the 17th day of April, 1924, in the county aforesaid and before the finding of this indictment did unlawfully, wilfully and feloniously confederate or band themselves together for the unlawful and felonious purpose of doing a felonious act and in pursuance of said conspiracy theretofore entered into as aforesaid did unlawfully, wilfully and feloniously take, steal and carry away a lot of good and lawful money of the United States of greater value than twenty dollars, the exact amount and description of which is to the grand jury unknown, the personal property of Stafford Hutsell, without the knowledge or consent of the said Stafford Hutsell, with the felonious and fraudulent intent to deprive the said Stafford Hutsell of his property therein, and to permanently convert the same to their own use against the peace and dignity of the Commonwealth of Kentucky.

                       "WILLIAM J. BAXTER, Commonwealth Atty."
                

To that indictment the appellant filed a general demurrer, and after he was convicted he filed a motion to arrest the judgment. Both his demurrer and motion to arrest the judgment were overruled, and these alleged errors are the principal ones of which he is complaining, it being his contention that the indictment did not charge a public offense and that the words "or to do any felonious act" contained in section 1241a-1 of the statutes must be construed under the ejusdem generis doctrine to include only that class of offenses specifically enumerated in the words that immediately precede them. This court has recently had this same question before it, and after much discussion has reached a conclusion adverse to appellant's contention. This conclusion was announced in the case of Phelps v. Com., 209 Ky. 318; 272 S.W. 743. The ejusdem generis doctrine was never anything more than a rule of construction followed by the courts in an effort to ascertain the intention of the legislative branch of the government, and has no application where the act in question is so clear as to leave no doubt about what the legislature intended. After a careful consideration of section 1241a-1 this court reached the conclusion that the legislature intended just what it said; that the legislature had become convinced that evildoers were more dangerous when acting in concert and that they became a greater menace to society when they joined themselves together for the purpose of carrying out their evil designs, and with that in view, the legislature had by this statute provided that if two or more persons confederate or band themselves together to do any felonious act, they or either of them shall be guilty of a felony, and upon conviction shall be confined in the penitentiary not less than one nor more than five years. This disposes of appellant's major contentions.

Appellant says that his conviction was flagrantly against the evidence. He insists this was his tobacco; that he had bought this tobacco from J.D. Hutsell, the father of Stafford Hutsell, and that after this robbery he paid the elder Hutsell for it. Stafford Hutsell contends that this was his tobacco; that he employed appellant to haul it to market for him; that after they got to market, appellant persuaded Hutsell to allow this tobacco to be sold in appellant's name; that appellant did sell it in his name and got the checks for it; but instead of endorsing the checks and delivering them to Stafford Hutsell, appellant insisted on cashing the checks, and that after he cashed them he made a pretense of offering the money to Stafford, but then remarked that he expected he had better keep it, as it would be safer in his possession, and said: "No, I'd better not give you this money here, there's no telling who is watching us."

As stated, appellant delayed their departure from Lexington. He took an unusual road, and between Lexington and Winchester they had motor trouble which Stafford Hutsell says was purposely produced by appellant. Directly after they had turned off the main road and were driving on the Wade's Mill pike, appellant began to look back, which caused Hutsell to do likewise. Soon a light appeared behind them, a car passed them and wheeled across the road in front of them. The alleged robbery then took place. Hutsell says he recognized one of the so-called robbers, both by his stature and his voice, as Asa Eubank, brother of appellant, but said nothing for fear of personal danger. The robbers went through the form of knocking appellant down. He pretended he was struck over the head with a black jack, and that quite a knot formed as a result of it. Hutsell was unable to see or feel any knot. The robbery proceeded true to form. The robbers took the key to the car, threw it under the car and directed appellant and Hutsell not to move for ten minutes. They then left. Shortly after this supposed robbery, Hutsell and appellant got up and went to a neighboring house to use a telephone. They found no telephone there, and went to a second house, and telephoned to Winchester. They had some officers come out to investigate the so-called robbery. Appellant, before the officers came, said to Hutsell: "Stafford, listen. I have sold this tobacco in my name and you let me do all the talking and don't you say anything, and if anybody asks you, tell them yes, it's my tobacco." They went to the...