Howard v. Com.

• Decision Date: 20 October 1972
• Citation: 487 S.W.2d 689
• Parties: Robert HOWARD and Donald Ray Poteete, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 689

487 S.W.2d 689

Robert HOWARD and Donald Ray Poteete, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 20, 1972.

Charles E. Carter, Owenton, for appellants.

Ed W. Hancock, Atty. Gen., Douglas E. Johnson, Asst. Atty. Gen., Frankfort, for appellee.

EDWARD P. HILL, Jr., Justice.

This appeal is from a judgment finding the appellants guilty of the crime of breaking and entering a dwelling house of another and of having been twice previously convicted of felonies under the Habitual Criminal Act (KRS 431.190) under which they were each given a life sentence.

For a reversal, the appellants list the two following arguments: (1) 'The verdict is not supported by sufficient evidence'; and (2) 'the court erred in the instructions under the Habitual Criminal Act.'

Appellants filed a joint brief. Their first argument, that the verdict is not supported by the evidence, is divided into two parts. Number one, they say that the evidence of an admitted accomplice is not supported by other evidence as required by RCr 9.62. Number two, the argument is made that the evidence that two previous crimes were committed by the appellants (separate crimes) is insufficient for failure of the Commonwealth to prove that the previous crimes were committed and convictions had thereon prior to the commission of the present crime and were progressive as required by our case law in Coleman v. Commonwealth, 276 Ky. 802, 125 S.W.2d 728.

We first discuss number two. The dates shown having proved that the previous crimes were committed prior to the present crime, further proof to that effect was unnecessary.

Turning next to part number one of appellants' first argument, we hasten to say that as to appellant Poteete there was sufficient evidence to support the testimony of the accomplice by introduction into evidence of a pocket knife found in the possession of Poteete at the time of this arrest, which knife was positively identified by the victim of the crime.

A more serious question is presented as to the sufficiency of the evidence supporting the accomplice's testimony as it related to appellant Howard. That supporting evidence consisted of testimony of the officer who interviewed Poteete to the effect that Poteete told the investigating officer that appellant Howard was present when the crime was committed. Essentially, this evidence was not only hearsay, but it was that of another accomplice. Our RCr 9.62 requires that the testimony of an accomplice be 'corroborated by other evidence tending to connect the defendant with the commission of the offense.' This rule contemplates that such 'other' evidence be that of someone other than that of an accomplice; otherwise, the rule would lose its meaning and purpose. This rule incorporates the substance of the Old Criminal Code 241 and 242. The effect of the rule was to lower the quality and credibility of...