Evitts v. Commonwealth
| Decision Date | 01 February 1935 |
| Citation | 78 S.W.2d 798,257 Ky. 586 |
| Parties | EVITTS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Muhlenberg County.
Albert Evitts was convicted of knowingly receiving stolen property and he appeals.
Reversed.
Hubert Meredith, of Greenville, and W. O. Smith, of Central City for appellant.
Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.
This is an appeal from a judgment of the Muhlenberg circuit court, under which appellant was sentenced to serve one year in the penitentiary for the crime of knowingly receiving stolen property under section 1199 of the Kentucky Statutes.
The indictment charged appellant with having received a quantity of cigarettes of a value in excess of $20 from one Joe Lane. It further charged that the cigarettes in question had been stolen from a railroad car of the Illinois Central Railroad Company, which was a common carrier. No definite time was charged as to the commission of the offense, except that it was "within one year before the finding of this indictment, to wit: on the _______ day of _______ A. D., 193__." See Sergent v. Commonwealth, 257 Ky. 567, 78 S.W.2d 795, decided this day.
The evidence indicates that the railroad car was broken into about the 12th of December, 1933. It indicates that Joe Lane, the confessed thief, made an agreement with the appellant to sell him these cigarettes a day or two after their theft, and that a portion of the cigarettes was actually delivered to the appellant at Morgan Mines, in Muhlenberg county, very shortly thereafter. The proof also indicates that the remainder of the cigarettes stolen was delivered about ten or eleven days later to the appellant at his store in Central City.
At some time after the cigarettes were stolen, the chief of police of Central City went to Evitts' store, in company with another officer, in connection with their investigation of the case. The chief testified that he asked appellant to help him "get a line" on the thief if the cigarettes were offered to him. The testimony rather indicates that appellant had already agreed to buy the cigarettes and had a part of them in his possession at the time of this talk with the chief of police. However, appellant says that his agreement with Joe Lane, the thief, was made after and pursuant to his conversation with the chief of police.
We are inclined to the view that appellant is right in his contention that the evidence in this case shows not one but two separate offenses. Like most rules of law, the question reduces itself to a matter of degree, and must rest ultimately in the discretion of the court. Had the two deliveries of cigarettes been separated by only a short interval, and had the proof indicated that the whole matter was one continuous transaction, we think that they might properly be considered as one offense. Here, however, the deliveries were made at widely separated points, at least ten days apart, and it was not shown that they were part of one transaction. We are of the opinion, on the evidence adduced, that two offenses were committed.
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Thacker v. Com., No. 2003-SC-0430-MR.
...cited, and we must reverse the judgment of conviction for the failure of the court to so instruct the jury."); Evitts v. Commonwealth, 257 Ky. 586, 78 S.W.2d 798, 799-800 (1935) ("We have held repeatedly that, where an accused admits the offense, or essential elements of the offense, but re......
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Grigsby v. Commonwealth
...law plea of confession and avoidance. The premise of the appellant's argument is in accord with a general rule. Evitts v. Commonwealth, 257 Ky. 586, 78 S.W.2d 798. On the other hand, we have laid down the rule that 'if the instruction which submits the commonwealth's theory of the case is c......
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Grigsby v. Commonwealth
...civil law plea of confession and avoidance. The premise of the appellant's argument is in accord with a general rule. Evitts v. Commonwealth, 257 Ky. 586, 78 S.W. 2d 798. On the other hand, we have laid down the rule that "if the instruction which submits the commonwealth's theory of the ca......
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Mondie v. Com., 2002-SC-0534-DG.
...cited, and we must reverse the judgment of conviction for the failure of the court to so instruct the jury."); Evitts v. Commonwealth, 257 Ky. 586, 78 S.W.2d 798, 799-800 (1935) ("We have held repeatedly that, where an accused admits the offense, or essential elements of the offense, but re......