Horn v. Com.

Decision Date10 October 1952
Citation251 S.W.2d 864
PartiesHORN v. COMMONWEALTH.
CourtUnited States State Supreme Court — District of Kentucky

Thomas A. Waller, Rodney J. Thompson, Winchester, for appellant.

J. D. Buckman, Jr., Atty. Gen., for appellee.

CLAY, Commissioner.

Appellant was convicted of grand larceny and sentenced to one year and a day in the penitentiary. He, along with one James McCarty (who was likewise convicted) followed the complaining witness home. Upon reaching her front yard, she had laid down her pocketbook and begun raking leaves. Appellant offered to help clean up the yard, but his offer was declined. He thereupon gathered some leaves together and set them afire. McCarty, who had come with him, snatched up the pocketbook and ran off. Appellant ran too. Later appellant returned the pocketbook to the complaining witness through a third person. It had contained $50 in cash, and upon its return $10 was missing. McCarty testified that he and appellant had agreed to take the pocketbook when they saw the complaining witness walking down the street with it.

Appellant's principal ground for reversal is that the instructions were erroneous and did not give the jury the whole law of the case. He first contends that the instructions erroneously permitted the jury to find appellant guilty as a principal. The argument is that admittedly McCarty took the pocketbook, and therefore appellant could only be an aider or abettor. However, the indictment did not charge the taking of a pocketbook, but the taking of money. According to the evidence, the jury could believe that both McCarty and appellant agreed to steal the money, and that the one who had the first opportunity would snatch the pocketbook. The jury could find that both parties were principals in a planned theft.

Appellant next insists that he was entitled to a separate instruction covering his defense that he came into possession of the pocketbook at the request of the complaining witness. He testified that she asked him to catch McCarty, and it was upon her instructions that he subsequently picked up the pocketbook. Appellant relies upon Evitts v. Commonwealth, 257 Ky. 586, 78 S.W.2d 798, wherein it was held that when an accused admits an offense or the essential elements of an offense but relies upon facts or circumstances amounting to an avoidance of the crime, he is entitled to an instruction on his theory of the case. In that case the defendant, accused of receiving stolen goods, testified that he had come into their possession at the request of the chief of police. See also Mays v. Commonwealth, 265 Ky. 558, 97 S.W.2d 419.

There are three reasons why appellant's position on this point cannot be sustained. In the first place, the right to a special instruction arises only where the defendant admits the commission of the apparent offense and attempts to avoid it by showing some legal excuse. See Frazier v. Commonwealth, 291 Ky. 467, 165 S.W.2d 33. The offense with which appellant was charged was stealing money. It was committed, if at all, when McCarty, acting in concert with appellant, made off with the pocketbook containing the money. Appellant denied he had anything to do with this taking. Since he denied the act itself, his excuse for later coming into possession of...

To continue reading

Request your trial
5 cases
  • Reynolds v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 27 Marzo 1953
    ...v. Com., 257 Ky. 586, 78 S.W.2d 798; Frazier v. Com., 291 Ky. 467, 165 S.W.2d 33; Scott v. Com., 311 Ky. 419, 224 S.W.2d 458; Horn v. Com., Ky., 251 S.W.2d 864; Wilson v. Com., 303 Ky. 219, 197 S.W.2d 240; Hammons v. Com., Ky., 252 S.W.2d 51. There are many other cases stating this rule, bu......
  • Hart v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 30 Noviembre 1956
    ...that they found the stolen property. There is no merit in this contention. Baker v. Commonwealth, Ky., 288 S.W.2d 56; Horn v. Commonwealth, Ky., 251 S.W.2d 864; Merida v. Commonwealth, Ky., 243 S.W.2d 652; Wilson v. Commonwealth, 303 Ky. 219, 197 S.W.2d The judgment is reversed with directi......
  • Whitaker v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 15 Marzo 1957
    ...and adequately covers the defense of accused, it is not necessary to give an affirmative instruction embodying his theory.' Horn v. Commonwealth, Ky., 251 S.W.2d 864. An affirmative instruction covering the special defense of alibi is not authorized. Smith v. Commonwealth, 122 Ky. 444, 91 S......
  • Faulkner v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 24 Febrero 1961
    ...of the accused if was not necessary to give an affirmative instruction. Whitaker v. Commonwealth, Ky., 302 S.W.2d 601; Horn v. Commonwealth, Ky., 251 S.W.2d 864. Appellant insists that the court erred in failing to give an attempt instruction. In support thereof, appellant relies upon the f......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT