Little v. Commonwealth

• Court: Kentucky Court of Appeals
• Writing for the Court: PERRY, Justice.
• Citation: Little v. Commonwealth, 289 Ky. 475, 158 S.W.2d 955 (Ky. Ct. App. 1941)
• Decision Date: 16 December 1941
• Parties: LITTLE v. COMMONWEALTH.

158 S.W.2d 955

289 Ky. 475

LITTLE v. COMMONWEALTH.

Court of Appeals of Kentucky

December 16, 1941

Rehearing Denied March 10, 1942.

Appeal from Circuit Court, Breathitt County; Chester A. Bach, Judge.

Sam Little was convicted of dynamiting fish, and he appeals.

Judgment affirmed.

Moss Noble, of Jackson, for appellant.

Hubert Meredith, Atty. Gen., and H. Appleton Federa, Asst. Atty Gen., for appellee.

PERRY Justice.

At the October term, 1940, of the Breathitt circuit court an indictment was returned against Sam Little, charging him with the crime of dynamiting fish, an offense denounced as a felony by section 1896-1, Kentucky Statutes (1936 edition).

Upon trial on this indictment, he was convicted and his punishment fixed at one year's confinement in the penitentiary.

Appellant's motion and grounds for a new trial having been overruled, he has prosecuted an appeal, seeking a reversal of the judgment on but three of the grounds set out in his motion and grounds for a new trial, which are as follows: (1) The verdict is palpably against the evidence; (2) the evidence is so uncertain, indefinite and contradictory with regard to time that defendant could not rebut same; and (3) the verdict is the result of passion and prejudice.

We will now undertake to discuss and dispose of these objections in the order presented.

It is first urged, as stated supra, that the verdict is palpably against the evidence.

The testimony of the three witnesses for the commonwealth is brought before us in narrative form, no stenographic report of the evidence having been made. However, we are of the opinion that the evidence thus brought before us, if true, is amply sufficient to show the appellant guilty.

The first of these witnesses, Martha Combs, stated that she lived about one mile from the home of appellant; that she and her two little sons (who upon the trial also testified for the commonwealth), some time during the year 1936 or 1937, in the spring, as she believed, and at about four or five o'clock in the afternoon, were returning to their home from a visit to her father, and, as they were proceeding up Middle Fork of Kentucky river (where appellant is accused of committing the dynamiting offense) and when at a point just below appellant's house, she there saw him light something and throw it into the water; that soon an explosion followed and in about two minutes she saw fish float to the top of the water; that there was another man with appellant whom she didn't know, who with appellant went out in a boat and began picking up the fish, which were about so long (indicating on her arm).

Also her two infant sons, Bernard Hensley and Chester Combs testified for the commonwealth, stating that they were with their mother upon the occasion stated and that they, as did their mother, saw the appellant, their neighbor, commit the acts of dynamiting and picking up fish from the stream as testified by her.

In addition to this direct and positive evidence given by these three witnesses as to appellant's having committed the fish dynamiting offense charged, Martha Combs further stated on her cross-examination that at the time she saw the defendant do these acts about which she testified, her husband, Oscar Combs, was in the federal penitentiary at Atlanta, Ga., and that she had not spoken to appellant for several years, although her feeling toward him at that time was good.

However, as to this, appellant testified that her feelings were hostile to him, for the reason that several years ago he had taken part against her husband in some lawsuits. Also he categorically denied all the testimony given by the three commonwealth witnesses.

The evidence given by the commonwealth's witnesses and that of the defendant being thus in conflict, the question of his guilt or innocence was for the jury to decide, the rule in such case being that if there is any evidence which tends to show the commission by the accused of the crime for which he is on trial, the question of his guilt or innocence should be submitted to the jury, as in such case a jury question is presented. Russell v. Commonwealth, 234 Ky. 544, 28 S.W.2d 732; Utterback v. Commonwealth, 190 Ky. 138, 226 S.W. 1065; Johnson v. Commonwealth, 244 Ky. 608, 51 S.W.2d 932; Miller v. Commonwealth, 236 Ky. 448, 33 S.W.2d 590.

Further the rule is that the evidence in a criminal case will not be reviewed by this court to see if it justifies a conviction ( Blaylock v. Commonwealth, 239 Ky. 793, 40 S.W.2d 382), as, where there is...