Gilbert v. Commonwealth

• Decision Date: 17 June 1899
• Citation: 106 Ky. 919
• Parties: Gilbert v. Commonwealth.
• Court: Kentucky Court of Appeals

106 Ky. 919

Gilbert v. Commonwealth.

Court of Appeals of Kentucky.

June 17, 1899.

APPEAL FROM OWEN CIRCUIT COURT.

LINDSAY & BOTTS FOR THE APPELLANT.

W. S. TAYLOR, ATTORNEY-GENERAL, AND M. H. THATCHER FOR APPELLEE.

JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.

This appeal is prosecuted from a judgment of the Owen Circuit rendered upon a verdict against the appellant upon an indictment charging him and others with the offense of horse-stealing. Numerous grounds were filed in support of the motion for a new trial, and the same having been overruled, appellant asks a reversal on account of various errors of the trial court.

We deem it unnecessary to notice in detail the several reasons assigned for reversal.

Appellant complains of Instruction No. 1 given by the trial court. The instruction is not as clear as should have been. It is open to the construction that it authorized the jury to convict if appellant received the horse knowing it to have been stolen.

Appellant was not accused of this offense, and the jury was not authorized to find him guilty of the offense charged unless he stole the horse either by himself or in company with others, and the instruction should have so told the jury.

Appellant had moved for a continuance on account of the absence of several witnesses, which motion was overruled; but his affidavit was allowed to be read as the deposition of the witnesses.

It appears that during the argument of the Commonwealth's Attorney, in closing the case to the jury, the following occurred: He said to the jury: "When a defendant was brought to trial for horse-stealing they always had an affidavit as to what two or three mythical witnesses would state that nobody knew, [the defendant objected, and the Commonwealth's Attorney then added,] although in this case James Renfrow and William Hedges are actually persons." To all of which defendant at the time excepted and still excepts.

The Commonwealth's Attorney, in the same argument, stated to the jury as follows: "I could if I had thought it necessary prove by fifteen or twenty as good men as live in New Liberty precinct that Wm. Keefe and George See were in New Liberty until eleven o'clock that Saturday night, and could prove a perfect alibi for Wm. Keefe and Geo. See."

"The defendant objected, and the court said to the jury that you are to consider only the proof before you, to all of which the defendant at the time objected and excepted and still excepts."

The Commonwealth's Attorney, in the same argument, stated as follows: "That when J. L. Piner testified at the examining trial this defendant found out that his story to S. D. Duvall, the sheriff, would not work, he changed it."

"The defendant objected, and the court said: `You will consider only the proof before you.' To all of which the defendant at the time objected and...