Hartsock v. Com.

• Decision Date: 02 October 1964
• Citation: 382 S.W.2d 861
• Parties: Donald Glenn HARTSOCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 861

382 S.W.2d 861

Donald Glenn HARTSOCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 2, 1964.

Francis D. Burke, Pikeville, for appellant.

Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

Appellant was convicted of forgery and sentenced to imprisonment for two years. KRS 434.130(2).

Appellant predicates this appeal on these claims of error below: (1) lack of evidence corroborating the testimony of accomplices; (2) the failure to instruct the jury of the necessity for corroboration of the evidence of an accomplice; (3) the instruction given was improper, and (4) cumulative errors reflecting the failure to accord appellant a fair trial.

The appellant was jointly indicted with Douglas Yates and Walter Hall. The indictment charged that the three men uttered a forged check and thereby fraudulently obtained money from Wards Supply Company.

Yates and Hall testified for the Commonwealth. Each of them said that appellant had prepared the check and that he was to share with them the proceeds of it. It was shown in evidence that appellant was not present in the store when the check in issue was cashed. Appellant denied implicity in the transaction. According to the Commonwealth's theory, Yates and Hall were accomplices of the appellant. RCr 9.62 provides that a conviction cannot be had upon the testimony of an accomplice unless that evidence is corroborated by other evidence tending to connect the accused with the commission of the offense. Failing such corroborative evidence, it is the court's duty to direct a verdict of acquittal. The cited rule substantially embraces the long standing Kentucky rule enunciated in Secs. 241 and 242 of the Criminal Code of Practice; decisions treating this problem as it frequently arose under the Criminal Code are authoritative as to RCr 9.62.

The corroborative testimony required must be of such nature and character to inspire belief in a reasonable and unprejudiced mind that it points toward guilt and links up with the principal fact under investigation. The corroborative testimony may be circumstantial and may include an admission or confession of the defendant on trial. The court will consider implications in a defendant's testimony which are inimical to his claim of innocence. Williams v. Commonwealth, 257 Ky. 175, 77 S.W.2d 609; Price v. Commonwealth, 296 Ky. 144, 176 S.W.2d 271; Scott v. Commonwealth, 303 Ky. 473, 198 S.W.2d 53; Tinsley v. Commonwealth, Ky., 273 S.W.2d 364, and cases therein discussed. In measuring whether the corroboration is adequate the evidence of the accomplice is eliminated. Hinton v. Commonwealth, 310 Ky. 435, 220 S.W.2d 1004.

Using these guidelines, we conclude that there was insufficient corroboration of the accomplices' evidence to warrant submission of the case to the jury. The accomplices testified that the appellant forged the checks involved and suggested the modus operandi. They said that he accompanied them into the Pikeville business section as they respectively set about to cash three checks entirely forged by appellant. Accomplice Hall related that appellant and accomplice Yates walked along the street with him until Hall entered the garage where Hall cashed the first check; then the three resumed their walking until accomplice Yates separated himself from them for the purpose of going to the store where Yates cashed the check upon which the instant indictment is based. According to the accomplices, appellant and Hall were waiting for Yates to cash the check, after which the three were to divide the money and go to Ohio to obtain employment.

While Yates was thus separated from appellant and Hall a police officer arrested Hall. Appellant was with Hall when the officer made the arrest, but nothing was said or done by anyone at that time which indicated that appellant was involved in the criminal charge for which Hall was arrested.

Appellant testified that when Hall was arrested he, appellant, obtained a taxi to go to Town Mountain for some beer. As the taxi was crossing the Williamson bridge appellant saw accomplice Yates running from two police officers. The two officers commandeered the taxi to...