Hall v. Commonwealth

• Decision Date: 15 June 1899
• Citation: 106 Ky. 894,51 S.W. 814
• Parties: HALL v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

51 S.W. 814

106 Ky. 894

HALL v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

June 15, 1899

Appeal from circuit court, Franklin county.

"To be officially reported."

Lucy Hall was convicted of the crime of grand larceny, and she appeals. Reversed.

John W Ray, for appellant.

W. S Taylor and M. H. Thatcher, for the Commonwealth.

DU RELLE, J.

Appellant was found guilty of grand larceny, under an indictment which in addition to the charge of grand larceny, alleged that she had been twice theretofore convicted of felonies, the punishment of which was confinement in the penitentiary setting forth the terms and courts at which the former convictions had been had. The evidence of her guilt was circumstantial. It was shown that the prosecuting witness having divided his money, put $32 of it in a sock, which he concealed in a tub in the yard of the house where he was staying; that he slept in the same room with appellant, another woman, and two children; that appellant went out into the yard about 4 o'clock in the morning; and that she made purchases of furniture and other things, and paid her rent, on that day. Evidence was also introduced as to two former convictions, which were both for grand larceny. Objection was made both to the admission of this testimony, and to the unofficial character of the person by whom the records of the former conviction were produced; he being a son of the clerk of the penitentiary, and acting as clerk during the clerk's sickness. Appellant testified to the fact that she found the money, not in a sock, but lying in the path leading through the back yard; that she did not know it was the property of defendant, and, from his statement made the night before, thought he had no money. The court gave the ordinary instruction as for grand larceny; directing the jury that, if they found her guilty, they should fix her punishment at confinement in the penitentiary for not less than one nor more than five years, and gave in addition an instruction that if they found her guilty under the first instruction, and should further believe that she had been twice theretofore convicted of felony, as charged in the indictment, they should so find and state in their verdict.

The court refused to charge the jury specially as to what they must believe in order to find appellant guilty of grand larceny, if they believed that she found the money. This also is urged as ground for reversal. This question has been already ruled upon by this court, through Judge Paynter, in Hester v. Com. (Ky.) 29 S.W. 875, where it was held that the instruction requiring the jury to believe that she did feloniously "take, steal, and carry away" the money was more favorable to the accused than if the court had instructed specially upon the defense that she had found the money, because, "if the jury believed that she did find the money, they could not find her guilty, under the instructions of the court."

It is earnestly urged that it was error to permit the introduction of evidence of former convictions at all until the jury should have first found her guilty under the charge for which she was then being tried; that it amounted to the admission of testimony to impeach her general character, which she had not put in issue, and enabled the commonwealth to show her to the jury in the light of a common thief, and rebut the presumption of innocence which the law gives her by evidence in chief upon a trial for grand larceny. It is painfully apparent that, with the circumstances shown as to the loss of the money, and evidence of two former convictions for grand larceny, the accused, who is an ignorant negro woman, had not the slightest chance that an average jury would entertain a reasonable doubt of her guilt, while, without the evidence of former convictions, there was a possibility that they might do so. There is a considerable force, therefore, in the proposition urged, that this procedure denied the accused a fair trial of the offense whereof she was accused. But the statute as to habitual criminals (Ky. St. § 1130) seems to have created an additional and higher degree of offense, viz. the commission of a felony, having been theretofore twice convicted of a felony, etc. To show the accused guilty of this degree of the offense charged, it is necessary to show the former convictions; and this, of course, is bound to prejudice the accused,--just as evidence showing malice is bound to prejudice the defendant in a murder case,--but it may be shown to make out a higher degree of the offense, which authorizes the severer punishment. The statute has been held constitutional, and it has been held essential to allege the former conviction or convictions in the indictment. Stewart v. Com., 2 Ky. Law Rep. 386; Mount v. Com., 2 Duv. 93; Taylor v. Com., 3 Ky. Law Rep. 783; Boggs v. Com. (Ky.) 5 S. W. 307. The statute requires the jury to find the fact of the former convictions. There is no provision for a separate trial of the fact of former conviction, nor do we think the statute intended there should be one. The law seems to work a hardship, but it is a hardship the legislature alone can remedy. In Combs v. Com., 20 S.W. 268, this court, through Judge Lewis, recognized the legality of this procedure, saying: "It was distinctly and sufficiently charged in the indictment, and fully proved on the trial, and also found by the jury, that appellant had been twice before the present offense convicted of a felony, the punishment of which is confinement in the penitentiary; and therefore the penalty of confinement in the penitentiary for life became, according to section 12, art. 1, c. 29, Gen. St. [now section 1130, supra], inevitable, and the court could do no less than so instruct, and the jury, after finding the present offense a felony, was bound to render the verdict in pursuance thereof. The validity of that statute has heretofore been sanctioned by this court and it is now needless to discuss the question."

The jury rendered a verdict as follows:

"We, the jury, find the defendant guilty of grand larceny, and fix the punishment at one year confinement in the Kentucky penitentiary. E. M. Wallace, Foreman.

"We, the jury, further find that the defendant was at the April term, 1883, of the Ballard circuit court, convicted of a felony, and that said defendant was again at the January term, 1893, of the Franklin circuit court, convicted of a felony. E. M. Wallace, Foreman."

It is urged that it was error for the court to sentence the defendant to confinement in the penitentiary for life under...