Jones v. Com.

• Decision Date: 12 February 1902
• Citation: 66 S.W. 633,112 Ky. 689
• Parties: JONES v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

66 S.W. 633

112 Ky. 689

JONES v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

February 12, 1902

Appeal from circuit court, Harrison county.

"To be officially reported."

Mat Jones was convicted of the offense of robbery, and he appeals. Affirmed.

W. T Lafferty, for appellant.

Morrison Breckinridge, for the Commonwealth.

GUFFY C.J.

The appellant was indicted, tried, and convicted in the Harrison circuit court under an indictment for robbery. The specifications in the indictment are as follows: "Did feloniously take a pocketbook and seven dollars in money, the personal property of Esaw Eckler, from his presence, and against his will, by violence, and putting him in fear of some immediate injury to his person." A jury trial resulted in a verdict and judgment sentencing the appellant to the penitentiary for 2 1/2 years. The verdict reads as follows: "We, the jury, find the defendant guilty, and fix his punishment at two and one-half years in the penitentiary. Dow Holten, Foreman."

The grounds relied upon for a new trial are because the court misinstructed the jury, or refused to properly instruct the jury, and because the verdict was against the law and evidence. At the conclusion of the testimony for the commonwealth the appellant asked for peremptory instruction which was refused by the court. No evidence was offered by the defendant. The court, in its first instruction substantially instructed the jury that "if, from all the evidence, they believed beyond a reasonable doubt that the defendant, before the finding of the indictment, and prior to March 1, 1901, did feloniously take a pocketbook and seven dollars in money, or any part thereof, the personal property of Esaw Eckler, from his presence, and against the will of said Eckler, by violence or putting said Eckler in fear of some immediate injury to his person, they should find the defendant guilty, and fix his punishment at confinement in the penitentiary for not less than two years nor more than ten years, in their discretion, governed by the proof." The second instruction was in regard to petit larceny. The third instruction was to the effect that, if the jury believed the defendant guilty beyond a reasonable doubt, but entertained a reasonable doubt as to the degree of his guilt they should find him guilty of petit larceny only. The fifth instruction was to the effect that if, upon the whole case the jury entertained a reasonable doubt of the guilt of the defendant having been proven, they should acquit him. The contention of appellant is that there was no evidence tending to prove that the appellant committed the offense of robbery. The evidence as to the taking of the pocketbook in question was given by Esaw Eckler, and is in words as follows: "I am acquainted with Mat Jones, the defendant. I have known him for several years. Some time in December. 1900, shortly before Christmas,--I think it was on court day,-- Mat Jones came up to me at the corner of Main and Pike streets, in Cynthiana, Harrison county, Kentucky, about four o'clock in the afternoon. I think it was about that time, for the four o'clock train was just blowing. I asked Jones if he had seen my son James Eckler. He said that he had, and that he knew right where he was, and he would take me to him if I would go. I told him I would, as I wanted to get him, and go home. We then walked north on Main street a short distance below where the new church was being built, and to the head of the alley. Jones then asked me if I would change a quarter for him, and I told him I thought I could, and took my pocketbook from my pocket, which was a leather pouch, or 'ridicule,' as I called it, closing by means of a draw string. I held the book in my left hand, and put my right hand into it and drew out a dime, and just as I was putting my hand in the book a second time Jones reached over and took the book from my hand, and ran up the alley. I called to him to stop with my pocketbook, but he didn't stop. I had about $7.00 in the book and my tax receipt. I had paid my taxes that day." On cross-examination Eckler testified as follows: "I was holding my pocketbook in my left hand, and had my right hand in it, and Jones grabbed it out of my hand, and ran up the alley." There was other testimony tending to show that the appellant really had the pocketbook in his possession, but no witness testified about the transaction of taking except Eckler. Counsel for appellant...