Hayden v. Com.

• Citation: 131 S.W. 521,140 Ky. 634
• Parties: HAYDEN v. COMMONWEALTH.
• Decision Date: 16 November 1910
• Court: Court of Appeals of Kentucky

131 S.W. 521

140 Ky. 634

HAYDEN v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 16, 1910

Appeal from Circuit Court, Jefferson County, Criminal Division.

James Hayden was convicted of larceny, and he appeals. Reversed and remanded.

D. J Bonner, for appellant.

Jas Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

CLAY C.

Appellant James Hayden, was jointly indicted with Georgia Belle Smith, charged with the crime of grand larceny. He was tried by a jury in the Jefferson circuit court, and found guilty; his punishment being fixed at confinement in the penitentiary for a period of two years. From the judgment of conviction, he appeals.

Appellant asked for, and was given, a separate trial. Georgia Belle Smith was first tried and convicted. Upon the trial of appellant the evidence for the commonwealth was to the effect that Mrs. Sallie Krebs and Morris Seifer, who boarded with her at her home on Preston street, lost several articles of wearing apparel. Appellant disposed of these articles, with the exception of a vest, which he had on when arrested, and a corset cover, which Georgia Belle Smith wore when arrested, to a secondhand dealer, named Moxan, for the sum of $5. He and the Smith woman lived in adjoining rooms. When arrested, they were making their plans to leave Louisville for the purpose of going to Danville, Ky. There was some evidence tending to show that the goods stolen were worth more than $20. Appellant, who is a barber, testified that the Smith woman brought the articles in question to his barber shop and told him that they had been given to her. She asked him to dispose of them for her, and gave him the vest for his services. He did dispose of them, believing at the time that they belonged to the Smith woman. He did not take or assist in taking the articles from the Krebs house.

Upon cross-examination by the commonwealth's attorney, appellant was asked the question if he did not hear Georgia Smith, in the presence of the officers, say she threw the things out of the window, and that he was there to grab them for her, and that he did not deny it. Appellant answered, "No, sir." Upon the conclusion of the evidence for the defendant, Officer Sullivan was called in rebuttal. Upon the question at issue the record shows the following questions and answers: "Q. I want to ask you if you were present at the time this woman stated in this man's presence she threw the goods out of the window to him? (Objected to; objection overruled; to which ruling the defendant excepted at the time, and still excepts.) A. She threw them out of the window, and he carried them out. Q. Did he deny the truth of that statement out there? A. He denied it; he denied where they were at. Q. He denied knowing where they were? A. From her information, we recovered the goods." After other testimony, to which it is not necessary to refer, the court admonished the jury as follows: "The testimony the officer has just given upon rebuttal will be considered by you only for the purpose of affecting the credibility of the defendant, if in your opinion it does affect his credibility."

Besides other ways, not necessary to be considered now, a witness may be impeached by showing (1) that he has made statements different from his present testimony, (2) by contradictory evidence, and (3) by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief but not by evidence of particular wrongful acts, except that it may be shown, by examination of a witness or record of a judgment, that he has been convicted of felony. Civ. Code Prac. § 597. So, too, under the general rule relating to cross-examination of a witness, he may be asked any question which tends (1) to test his accuracy, veracity, or credibility, and (2) to shake his credibility by injuring his character. But when a witness, under cross-examination, has been asked, and has answered, any question which is relevant to the inquiry only in so far as it tends to shake his credibility by injuring his character, no evidence can be given contradicting him, except in the following cases: (1) If the witness is asked whether he has been previously convicted of any felony, and denies or does not admit it, or refuses...