Horn v. Commonwealth

• Decision Date: 16 April 1935
• Citation: 258 Ky. 718,81 S.W.2d 576
• Parties: HORN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

81 S.W.2d 576

258 Ky. 718

HORN v. COMMONWEALTH.

Court of Appeals of Kentucky

April 16, 1935

Appeal from Circuit Court, Owsley County.

Willie Horn was convicted of grand larceny, and he appeals.

Reversed.

S. H Rice, of Booneville, for appellant.

Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.

REES Justice.

The appellant, Willie Horn, was jointly indicted with Henry Boland and Silas Stewart for the crime of grand larceny. On his separate trial, he was convicted and sentenced to a term of one year in the penitentiary.

He seeks a reversal of the judgment on the ground that incompetent evidence was admitted over his objections, and on the further ground that the trial court erred in overruling his motion for a peremptory instruction.

On the night of June 23, 1933, an automobile in which Henry Boland and William Wilder were riding ran into a ditch near appellant's home. The automobile belonged to Wilder, but at the time of the accident was being driven by Boland. Horn assisted them in getting the automobile out of the ditch and Boland and Wilder then went to Horn's home, where Boland remained until Wilder, who was drunk, went to sleep. Later in the night Boland, appellant, and Silas Stewart left in Wilder's automobile and drove to Knoxville, Tenn. From there they went to Oklahoma. Two or three weeks later the automobile was located in Colorado.

Wilder testified that Jalah Horn, wife of Willie Horn, showed him a letter signed by Willie Horn and mailed from River Bend Colo., in which he stated that if he was sent $15 he would return the automobile to Kentucky. Herbert Spencer testified that he saw the letter and that in it Horn stated he had the automobile in his possession and wanted to return home, and if his wife would send him $15 he would bring the car back to Kentucky. Mrs. C. L. Seale, a sister of William Wilder testified that she saw a letter signed by Willie Horn in which he asked his wife to borrow and send him $15. Jalah Horn said in the presence of the witness that if some one would put up the money her husband would bring the car home, but the witness did not remember whether the car was referred to in the letter. It is the testimony of these witnesses of which complaint is made. A letter dated July 28, 1933, written by Willie Horn to his wife and mailed from River Bend, Colo., was introduced by the appellant. In it he asked his wife to borrow $15 and send to him to enable him to return home, but the automobile was not mentioned in the letter. He testified that this was the only letter he had written to his wife while he was away. When confronted with this letter, Wilder, Spencer, and Mrs. Seale denied that it was the letter they had read. It is insisted that these witnesses should not have been permitted to testify in regard to the contents of the letter without producing the letter itself.

The best evidence of the contents of a written instrument is the instrument itself, and the general rule is that secondary evidence of its contents is not...