Harrod v. Com.
| Decision Date | 10 January 1950 |
| Parties | HARROD v. COMMONWEALTH. |
| Court | United States State Supreme Court — District of Kentucky |
S. Rush Nicholson, Louisville, for appellant.
A. E. Funk, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., for appellee.
VAN SANT, Commissioner.
Appellant was found guilty of the crime of breaking and entering into a storehouse, and having previously been convicted of two other felonies, was convicted of having violated the Habitual Criminal Act. He was sentenced to serve the remainder of his life in the Kentucky State Reformatory. He seeks reversal on the following grounds: (1) the Commonwealth failed to prove the venue of the crime; (2) the Commonwealth failed to prove a 'breakin'; (3) the court erred in failing to instruct the jury on the law of insanity; (4) the court erred in overruling appellant's motion for a new trial based on the ground of newly discovered evidence; (5) appellant's rights under the Federal and State Constitutions were violated by the court in admitting evidence obtained by 'purported' confessions and admissions made by appellant to members of the Police Department of Louisville; and (6) the court erred to the prejudice of appellant by placing him in jeopardy without notice having been given to the Division of Hospitals and Mental Hygiene for an examination by a psychiatrist as prescribed by KRS 203.340.
The evidence reveals that on the night of December 9, 1947 two patrolmen of the Police Department of the City of Louisville were cruising on Second Street in that City a few minutes before 10:00 p. m. They observed a one-half ton pickup truck proceeding through a red traffic light at the intersection of Second and Liberty Streets. When they pulled alongside the truck, it swerved over the sidewalk, across a parking lot, and came to a stop in a deadend alleyway. Appellant alighted from the truck, and before he could escape was placed under arrest by the officers. The officers observed a safe in the backend of the truck. When questioned about the safe, appellant stated that it had come from a store on Jefferson Street between the Car Barn and Fourth Street. He could not remember the number of the building, but stated that the front door would be 'wide open.' He then stated 'you have got me, now take me to headquarters.'
From this information, the officers made an investigation and discovered that a delicatessen owned by Leon Goldstein at 330 West Jefferson Street (between the Car Barn and Fourth Street) had been broken into and a safe taken therefrom. The delicatessen had been locked by the proprietor at 7:30 p. m. and, when discovered by the officers, the lock had been broken.
Upon his arrival at headquarters, appellant voluntarily admitted breaking into the store, taking the safe and hauling it away in the truck. He contended at that time that he had no accomplice although the officers estimated the weight of the safe to be between three hundred and four hundred pounds, requiring three of them to unload it at headquarters; however, he did disclose to the officers the exact place in the store from which the safe was taken. At the time of his arrest, appellant was under bond for appearances in other cases and was released from custody. On the 31st day of January, 1948, he again was taken into custody and questioned concerning other unsolved cases. At that time, he admitted 'casing' the premises of Mr. Goldstein in preparation for the breaking and entering therein. He stated that he gained entrance by use of a 'jimmy bar' and that he was interested in the safe because of his impression that money belonging to the operator of a handbook located in the building was kept in the safe. He stated at that time that he was not at liberty to tell who his accomplice was. He again was released without the requirement of filling further bond. Since both confessions were made in the late hours of the night, a stenographer was not called to record the statements.
On the trial, appellant testified that he was hired to haul a filing cabinet by a man named York who was accompanied by John Beck and Frank Redmond. He said in pursuant of this employment he drove his truck to the restaurant and the other men loaded it. He was permitted to read his affidavit stating that York, Redmond, and Beck would testify to the some effect if they were present in person.
In support of his motion and grounds for a new trial, appellant introduced the affidavit of Ashton D. Marsh, which was dictated March 12, 1948 and signed and sworn to on the morning of March 13, 1948, wherein the affiant stated that he and a man known as A. L. York broke into the storehouse at 330 West Jefferson on the night of December 9, 1947, and removed therefrom one safe. That he and Olin Teal had engaged appellant to do some hauling for them representing that the merchandise to be hauled was furniture. That the breaking and entering was done out of the presence of appellant; the safe was waiting in the doorway when appellant arrived, and was thereupon loaded in the truck which was driven away by appellant in accordance with the terms of the contract. He further stated that he introduced himself to appellant under the name of John Beck. Later in the day of March 13th, Marsh signed another affidavit, repudiating the first. In that affidavit, he said that he was not present when the crime was committed, and that everything he said in the previous affidavit was 'completely false.' He stated that he was not with appellant, York, or Teal on the night the crime was committed, and that he did not break into the delicatessen on that or any other occasion.
On April 28, 1948, at a hearing on appellant's motion for a new trial, Marsh repudiated the second affidavit and confirmed the first. It was shown that Marsh was a fugitive from justice in other states, and was under a sentence of life imprisonment in this state.
Lieutenant Evans testified that he was a Lieutenant of the Police Department of the City of Louisville in charge of the Second District and was on duty the night of December 9, 1947; that on that night the premises at 330 West Jefferson Street were broken into and appellant admitted to him that he committed the crime. This evidence was sufficient to establish the venue of the crime.
This officer likewise testified that appellant told him that he was the person who broke into the store, and he described the exact place the safe had been located in the store. The proprietor of the store testified that he locked the premises at 7:30 p. m., and when he arrived, after being notified by the police, he found that the lock was out of the door--'just a plain hole'--when he got there, and the lock was...
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Harrod v. Com.
...proof of three previous convictions of felonies, his punishment was fixed at life imprisonment as an habitual criminal. Harrod v. Commonwealth, 311 Ky. 810, 226 S.W.2d 4, certiorari denied 339 U.S. 915, 70 S.Ct. 562, 94 L.Ed. 1341. Denial of a previous petition for habeas based upon defecti......
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