Kidd v. Commonwealth
| Decision Date | 26 April 1938 |
| Citation | 273 Ky. 300,116 S.W.2d 636 |
| Parties | KIDD v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Whitley County.
Malcolm Kidd was convicted of storehouse breaking, and he appeals.
Affirmed.
Joe S Feather and Gordon D. Rowland, both of Corbin, for appellant.
Hubert Meredith, Atty. Gen., and W. Owen Keller, Asst. Atty. Gen for the Commonwealth.
STANLEY Commissioner.
The appeal is from a conviction imposing a penalty of two years in the penitentiary for violating section 1164, of the Statutes, providing that: "If any person shall feloniously, in the night or day, break any *** storehouse *** with intent to steal *** any *** merchandise or other thing of value, *** he shall be confined in the penitentiary not less than one nor more than five years."
About half past 2 o'clock one night in June last, a merchant policeman or watchman, in Corbin, heard a noise and then a crash of glass. He went quickly around to the apparent place and saw the appellant, Malcolm Kidd, running away. Two small panes of glass near the lock were broken out of the door of the drug store of the Dyche Drug Company. He and another watchman gave chase and arrested Kidd, who, when asked why he had broken out the glass, denied knowing anything about it. It appears also that after his arrest the young man escaped and fled; but the second chase was also successful and he was placed in jail. There were screen doors in the store, and the officer, in rebuttal, testified that he heard and saw one of those doors slam when the defendant ran.
When asked, as a witness, if he had broken the glass in the door the defendant replied, "Yes, I just started to go past there and I was drunk and wanted to hit something, and I just hit that door and went on." He testified he walked away when the officer called to him, and "I started running just like any drunk would; I didn't want him to catch me because I was drunk."
The defendant had a bad reputation and had previously been convicted of a felony.
The argument is made that the evidence was not sufficient to show a breaking or an intent to steal anything in the store, but sufficient only to show the destruction of property. The instruction submitted both offenses.
The gravamen of the crime with which the defendant was charged is the felonious breaking with the intent to steal, and the mere act without that essential element of intention does not constitute a statutory offense. Patterson v. Commonwealth, 251 Ky. 395, 65 S.W.2d 75, 76. We there further wrote: In that case the act of breaking and taking merchandise was admitted, but the defendant pleaded he was too drunk to have the necessary criminal intent. In this case the accused does not go so far. He does not undertake to bring himself within the definition of the wag:
"Not drunk is he who from the floor
Can rise again and drink one more;
But drunk is he who prostrate lies
And who can neither drink nor rise."
According to the defendant, the liquor only created the irresistible urge to punish the defenseless glass in the door, close to the lock. According to the officers it stimulated his running capacity, or, in race track jargon, it so "hopped him up" as to put him in a class with Man O'War. The defendant's flight, denial, escape, and other circumstances justified the jury in determining his intention to have been criminal.
The appellant submits as authority that there was no breaking into the store the case of Gaddie v. Com., 117 Ky 468, 78 S.W. 162, 25 Ky. Law Rep. 1585, 111 Am. St.Rep. 259. In that case the accused had drawn some nails out of and pried loose an outside strip which held a window firmly in place so that the window was left unprotected and could have been easily lifted out, but there was no opening made into the interior of the building. The evidence also showed the act was done with the intent to steal. Analyzing the...
To continue reading
Request your trial
-
State v. Farris
...intent with which an act is done may be found, often can only be found, from the attendant circumstances.' See also Kidd v. Commonwealth, 273 Ky. 300, 116 S.W.2d 636. We held in both of these cases that the circumstances shown were sufficient to make intent to steal a jury issue, although i......
-
Garrison v. Kingins
... ... substantial grounds, and is being prosecuted with due ... diligence. Rogers v. Commonwealth, Rodgers v ... Webster, 266 Ky. 679, 99 S.W.2d 781. If that does not ... appear, the court may deny a postponement and the law becomes ... ...
-
Norris v. Com.
...212 S.W.2d 120 307 Ky. 675 NORRIS v. COMMONWEALTH". Court of Appeals of KentuckyJune 4, 1948 ... Appeal ... from Circuit Court, Boyd County; Watt M. Prichard, Judge ... \xC2" ... the crime is the felonious breaking with intent to steal, and ... only slight force is necessary to constitute ... 'breaking.' Kidd v. Commonwealth, 273 Ky ... 300, 116 S.W.2d 636; Hawkins v. Commonwealth, 284 ... Ky. 33, 143 S.W.2d 853. Consummation of the intent to steal ... ...
-
Keathley v. Com.
...S.W.2d 435; Muncie v. Commonwealth, 308 Ky. 155, 213 S.W.2d 1019; Kitchen v. Commonwealth, 291 Ky. 756, 165 S.W.2d 547; Kidd v. Commonwealth, 273 Ky. 300, 116 S.W.2d 636; Bardin v. Commonwealth, 191 Ky. 651, 231 S.W. 208. With substantial evidence to support the verdict, we cannot usurp the......