Hunt v. Commonwealth

• Decision Date: 28 October 1941
• Citation: Hunt v. Commonwealth, 288 Ky. 138, 155 S.W.2d 732 (Ky. Ct. App. 1941)
• Parties: HUNT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

155 S.W.2d 732

288 Ky. 138

HUNT v. COMMONWEALTH.

Court of Appeals of Kentucky

October 28, 1941

Appeal from Circuit Court, Pike County; R. Monroe Fields, Judge.

Ernest Hunt was convicted of feloniously breaking into and entering an oil and millhouse with intent to steal gasoline therefrom and he appeals.

Affirmed.

Sidney Trivette, of Pikeville, for appellant.

Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for appellee.

PERRY Justice.

The appellant, Ernest Hunt, was jointly indicted with Truman Adkins and Junior Smith by the grand jury of Pike county at its September, 1940, term, charging them with the crime (denounced by section 1164, Kentucky Statutes) of unlawfully and feloniously breaking into and entering the oil and millhouse of Miles Plymale, with the felonious intent to steal and carry away gas therefrom. Upon his separate trial on the charge (had on May 9, 1941), appellant was convicted and sentenced to one year's confinement in the state penitentiary, the minimum punishment fixed by the statute.

From that judgment appellant has appealed, seeking its reversal upon the following grounds: (1) That the defendant was due a peremptory instruction; (2) that the defendant can not be convicted on the evidence of an accomplice; (3) that guilt must be established beyond a reasonable doubt; and (4) that defendant must have knowledge of the crime before conviction.

The nature of the first two of these grounds is such as call for a brief recital of the evidence.

The facts are, as gathered from the uncontradicted testimony that on the night following the 1940 August primary election the oil and millhouse of Miles Plymale, located on Long Fork of Johns Creek in Pike county, Kentucky, was, at about midnight, broken into and a five-gallon can and nearly five gallons of gasoline were stolen therefrom and carried away by Truman Adkins and Junior Smith, jointly accused with the appellant with the commission of this crime.

Further it is shown by the testimony that shortly before this charged offense was committed, the appellant, Ernest Hunt, Truman Adkins and Junior Smith were out driving in a car (belonging to Hunt's brother) along Johns Creek, making thereon several trips between the lower forks of the creek, near where appellant, Junior Smith and Adkins lived, and the oil and millhouse of Miles Plymale, about one mile distant up the creek, above its forks. Thus they passed the millhouse several times before Adkins and Smith left Hunt in his car at a point about a quarter of a mile beyond the millhouse, and went down and broke into the millhouse and took therefrom both a five-gallon oil can found in the store and about five gallons of gas, which they state they syphoned into the can from a barrel of gasoline there kept for sale by Plymale.

Upon appellant's separate trial on this charge, Junior Smith testified as an accomplice witness for the commonwealth that the appellant, Adkins and he were driving up and down along Johns Creek on the night this crime was committed and that as they were driving, Ernest Hunt proposed that they steal some gas from Plymale's millhouse; that following Hunt's suggestion, they drove back up the creek to a point about a quarter of a mile beyond Plymale's and stopped, when the appellant handed him and Adkins a two-gallon gasoline can he carried in the car and told them to go down to Plymale's millhouse and steal some gas and bring it back in the can to the car, where he would wait until they returned.

It is further testified by this accomplice witness, Junior Smith, that after breaking into the millhouse and there finding and filling the five-gallon can belonging to Plymale with his gas, they returned to the car, carrying both it and the two-gallon can given them by Hunt, found Hunt waiting there for them and gave him the stolen can and gas, which he took and emptied into his car tank, without comment made or question asked as to their bringing back the two cans and more than double the amount of gas he states Hunt had directed them to steal and bring back in the two-gallon can he gave them.

Further it is testified both by Smith and Adkins that after Hunt had taken the five-gallon can and emptied the gas into his car tank, they took it a short distance up the road and hid it by throwing it over the fence into some bushes in the garden of Eliza Bostic.

Further, it is nowhere denied in the evidence that Hunt could see or knew of their carrying the emptied can away for the purpose of hiding it, thus destroying the evidence of their theft of it.

Both Smith and Adkins upon their earlier separate trial on the indictment, wherein they were jointly accused with appellant with the commission of this crime, pleaded guilty and were thereupon sentenced to imprisonment therefor.

The evidence relied upon by the common-wealth as corroborating the testimony of the accomplice, Smith, is to the effect (as testified by Hunt himself) that he, together with Adkins and Smith (the three persons joined in the indictment charging them with the commission of this offense), with some other boys, were riding up and down Johns Creek on the night in question; that after the other boys had left them, they continued to ride around until their car stopped about a quarter of a mile above Plymale's millhouse because of running out of gas and that they decided to obtain some gasoline from Plymale's nearby millhouse, who occasionally sold gas to travellers at the rate of 25¢ a gallon.

Appellant testifies that upon discovering they were out of gas and stalled about a quarter of a mile above the millhouse, he told the boys they would either have to get some gas or stay out on the road...