Kirby v. Commonwealth

• Decision Date: 13 January 1925
• Citation: 206 Ky. 535
• Parties: Kirby v. Commonwealth.
• Court: Kentucky Court of Appeals

Page 535

206 Ky. 535

Kirby v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 13, 1925.

Appeal from Clark Circuit Court.

J. S. LUSCHER for appellant.

FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY COMMISSIONER SANDIDGE — Reversing.

By this appeal appellant, Harris B. Kirby, would have us reverse the judgment of the Clark circuit court adjudging that he serve a term of 18 months in the penitentiary for grand larceny. Appellant was convicted of having stolen a Ford touring car belonging to the Road Department of the State of Kentucky. The car had been left parked on Main street, in Winchester, Kentucky, and was stolen between seven and nine o'clock on the evening of March 11, 1924. Some two or three weeks later a Ford motor was found in place on a truck at a garage or workshop owned by appellant in Paris, Kentucky, which a mechanic for the road department identified as being the motor from the stolen Ford touring car. The motor number stamped on it at the factory had been so ground off or mutilated that it could not be identified positively by it, but the mechanic identified it by a particular V-shaped notch that he had ground into the valve plate with an emery wheel in order to install a foot accelerator on the car and by a gasket cut from a piece of roofing that had been used in lieu of the original gasket when the valve plate was replaced. Three negro boys testified that they went from Paris, Ky., to Winchester with appellant, Kirby, about the time the car was stolen; that he left them in his car on the outskirts of the town and walked into town alone; that he returned shortly with a Ford touring car; and that the four of them returned to Paris, taking with them the car in which they had gone to Winchester and the car brought to them by appellant from Winchester. They testified that the car procured by appellant in Winchester was taken to his garage and that there was painted on either side of it a number corresponding with that testified to by the agent and mechanic of the road department. No part of the stolen automobile was ever found except the motor above mentioned. Appellant denied having gone to Winchester with the negroes at the time they mentioned or at any other time, and denied any knowledge of or participation in the theft of the car. He testified that one of the negroes used as a witness against him previously had purchased from him the truck in which the stolen motor was found; that later and before the motor was found in the truck he had repurchased it from the negro; that the negro was driving the truck for him and shortly before the stolen motor was found and identified had returned to the garage on one occasion with a motor on the truck and had proposed to him that if he would substitute the new motor for the one then in the truck he would purchase the truck again. He testified that he removed the old motor from the truck and substituted the new for it under that arrangement without knowing anything about where the negro had procured the motor. It appears from the testimony that at the time the Ford touring car was shown to have been stolen from the streets of Winchester, appellant was employed by the L. & N. Railroad Company at Paris, Ky., as a car inspector and that under his employment he worked each day from three o'clock in the afternoon until eleven o'clock at night and that he was so engaged on the day the automobile was stolen at nine o'clock p. m., in Winchester. The verdict of guilty was found under the facts above detailed.

Several alleged errors of the trial court are urged as reasons for reversal, and one of them in our opinion is sufficient for the purpose. After having proved the facts of the theft by Henry Washington, one of the negro boys, who testified that he went to Winchester with appellant, as above detailed, over the objection of the appellant the court below permitted the Commonwealth to prove by him that on another occasion he and the same other persons went from Paris, Ky., to Winchester with appellant, Kirby, and that on the other occasion Kirby stole another car and had it brought back to Paris. Appellant insists that such evidence violates the general rule that while on trial for a crime it is incompetent to prove the commission of other crimes by the...