Lawson v. Com.

• Citation: 160 Ky. 180,169 S.W. 587
• Parties: LAWSON ET AL. v. COMMONWEALTH.
• Decision Date: 08 October 1914
• Court: Court of Appeals of Kentucky

169 S.W. 587

160 Ky. 180

LAWSON ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 8, 1914

Appeal from Circuit Court, Whitley County.

Crit Lawson and Greene Lawson were convicted of housebreaking, and they appeal. Affirmed as to defendant Crit Lawson, and reversed as to Greene Lawson.

Rose &amp Pope, of Williamsburg, for appellants.

Jas Garnett, Atty. Gen., and R. T. Caldwell, Asst. Atty. Gen for the Commonwealth.

NUNN J.

The appellants, Crit Lawson and Greene Lawson, were indicted and convicted for housebreaking, and sentenced to the penitentiary one to five years. The indictment was returned on the 18th day of February, and charges that on the 16th day of February Crit and Greene Lawson "did unlawfully, willfully, feloniously, and forcibly break open and into the dwelling house owned by Joe Perkins, and in the possession of A. Sawyer, and used as a dwelling house, and did take, steal, and carry away flour and lard of value therefrom," etc.

The case was set for trial February 21st. Appellants sought a continuance on account of absent witnesses, and in support of it filed their affidavit showing that Jim Carr and Alonzo Satterfield, if present, would swear that bad feelings existed between the defendants and Nathan Sullivan, alleged chief witnesses for the commonwealth, and Carr would also swear that, just after the defendants were arrested, he heard Nathan Sullivan talking, and in that way, "learned that through the instrumentality of said Nathan Sullivan and others, and by either them directly or through them by their connivance. the flour, lard, and other property said to have been obtained by breaking into the outhouse, controlled by Antony Sawyer, was carried from said outhouse to near the home of Crit Lawson, at least some of same, and placed there for the purpose of afterward instituting this prosecution against said Crit Lawson. * * * I do not know exactly, from said conversation and said statement of said Nathan Sullivan at said time, it was done through his or others' procurement."

The trial being at the indicting term, the commonwealth admitted the truth of the affidavit, subject to competency and relevancy. Toliver v. Commonwealth, 104 Ky. 760, 47 S.W. 1082, 20 Ky. Law Rep. 906.

The commonwealth did not introduce Nathan Sullivan in chief. Defendant, in offering his evidence in chief, asked to have read the affidavit. The appellants say that the court erred to their prejudice in refusing. It will be noticed that the affidavit was directed at Nathan Sullivan, "a chief witness for the commonwealth," and he was not introduced. It undertakes to show bad feelings between the accused and this Sullivan. Such testimony ordinarily goes to affect the credibility of a witness, and that state of feeling was freely admitted in this case, although Sullivan had not been introduced. As to the carrying of the lard and flour to Crit Lawson's place, in order to cast suspicion upon him, and cause his arrest and prosecution, the witness does not say that Sullivan did it, or that he heard him say he did it, or had it done. He heard Sullivan in a conversation, and in that way "learned" some one had done this through Sullivan's instrumentality. It is not substantive or tangible evidence that the offense was committed by another than Lawson. He does not relate the conversation. The affidavit amounts to no more than a conclusion of the witness, without the facts as a basis for it. The defendants proved by certain witnesses that, on the night the offense was committed, they met Sullivan near to Lawson's house, and going in the direction of it, carrying a can of lard on his shoulder. Then the commonwealth introduced in rebuttal Nathan Sullivan, and he denied that he carried any lard that night in the direction of Crit Lawson's house. The defendant did not ask him anything about the statements in the affidavit for continuance, nor did they then or afterwards offer to read the affidavit.

The appellants insist that the court should have given a peremptory instruction in their favor, because the proof failed to show a breaking in. The lard and flour was in a two-room house, into which Sawyer expected to move in a few days. The barrel of flour was against the front room door and held it fast. The partition door stood open. The rear or kitchen door was latched, and also fastened with a peg at the floor. There was an open window in the front room. There was a trail of flour leading from the barrel at the front door through the open partition door, and out the kitchen door. When the theft was discovered, the kitchen door was latched and fastened at the floor as usual. These circumstances indicate that the thief entered through the open window, stole the flour and lard, opened and...