Fryman v. Commonwealth

• Decision Date: 19 October 1928
• Parties: FRYMAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

10 S.W.2d 302

225 Ky. 808

FRYMAN v. COMMONWEALTH.

Court of Appeals of Kentucky

October 19, 1928

Appeal from Circuit Court, Bourbon County.

Charles Fryman was convicted of unlawfully transporting intoxicating liquor, and he appeals. Reversed, with directions to grant new trial.

Gene Lair, of Paris, for appellant.

J. W Cammack, Atty. Gen., and Geo. H. Mitchell, Asst. Atty. Gen for the Commonwealth.

THOMAS J.

The appellant and defendant below, Charles Fryman, at his trial under an indictment accusing him and Raymond Herrington of the offense of unlawfully transporting intoxicating liquor was convicted. His motion for a new trial was overruled and he has filed a transcript of the record in this court, with a motion for an appeal. The two principal grounds urged in support of the motion and for a reversal of the judgment are: (1) The insufficiency of the testimony to sustain the conviction and error of the court in overruling defendant's motion for an instruction of acquittal; and (2) that the court improperly instructed the jury.

1. A most careful reading of the evidence heard upon the trial clearly convinces us that ground (1) is without merit and cannot be sustained. It is based upon the theory that the two chief witnesses for the commonwealth, Herrington and Darrell, were accomplices of defendant, and that there are no corroborating circumstances or facts to sustain their testimony, and under the provisions of section 241 of the Criminal Code of Practice defendant was entitled to a peremptory instruction. But the record discloses a number of circumstances, which we will take neither the time nor space to recite in detail, pointing to the guilty participation of defendant in the transporting of the liquor by defendant and the other two witnesses mentioned. It is quite conclusively established that the transportation was made in defendant's automobile. Directly after it was hidden in a wheat field by the side of the pike some three or four miles from Paris, Ky. it was proven, and defendant admits, that he was in his automobile with his other two alleged companions. A policeman testified that, on the night that the automobile started on the trip to Newport to procure the whisky, he saw it, with three persons in it, going in the direction of Newport, and that one of the occupants was Darrell. There are other circumstances found in the record which, with those mentioned, supply the necessary corroborating facts to authorize a conviction upon the testimony of an accomplice, and this ground is overruled.

2. The court, in submitting to the jury the weight to be given to the testimony of an accomplice, said:

"The defendant cannot be convicted upon the testimony of Garthledge Darrell, an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof."

It will be observed that the court in that instruction submitted the corroborating rule, as contained in section 241 of the Criminal Code, only as to the witness Darrell, thereby determining himself that the witness Herrington was not an accomplice, and that his testimony needed no corroboration under the section of the Code referred to. Furthermore, by so instructing the jury, and by so assuming with reference to the testimony of Herrington, the jury were in effect told that the testimony of Herrington could be accepted as corroborative of that of Darrell, so as to authorize a conviction under the Code provisions. It therefore becomes necessary to briefly notice the substance of the testimony, in order to determine whether the court was or not correct in the particulars referred to.

It will be remembered that Herrington was jointly indicted with appellant, Fryman, and he was the first witness introduced by the commonwealth. He said in his testimony that he was standing on the streets of Paris, engaged in a conversation with defendant, Fryman, and Darrell, when the former asked him to take a ride, and the three got in defendant's automobile and started in the direction of Cynthiana, and that he did not know where they were going until he got beyond that city; that when they got to Newport Darrell and defendant went into a house, and brought out five gallons of moonshine liquor, and put it into the car, and the three then started back for Paris, but, when they got within four or five miles of it, that "we got out, and hid the whisky in the field"; that he let defendant out at his (defendant's) house, and witness then drove the car to the home of Darrell, where the latter got out, and he then drove it up the street. He then said, "After a few minutes I went back and got Darrell, and we drove out where the whisky was hidden," and when they got there an officer was on the scene and arrested them. He denied owning an...