Lovan v. Commonwealth

• Citation: 261 Ky. 198
• Parties: Lovan v. Commonwealth.
• Decision Date: 07 November 1935
• Court: United States State Supreme Court (Kentucky)

Page 198

261 Ky. 198

Lovan v. Commonwealth.

Court of Appeals of Kentucky.

Decided November 7, 1935.

1. Criminal Law. — Evidence disclosing, among other things, that defendant was seen near automobile shortly before it was stolen, and within a few hours was arrested in another county near place where automobile was found, that he gave an assumed name and made palpable misstatement as to how he had traveled from place where automobile was stolen to place where it was found, held to sufficiently corroborate testimony of accomplice to support conviction of grand larceny (Criminal Code of Practice, sec. 241; Ky. Stats., sec. 1194).

2. Criminal Law. — Where defendant was charged with two prior convictions of felony, court order book showing that he had been twice convicted of felony, once under one name and once under another name, and testimony of employee in identification department at penitentiary who had known defendant from childhood that defendant had served two sentences in penitentiary under corresponding names, held competent to identify defendant as person who had been previously convicted.

3. Criminal Law. — Habitual criminal statute held not rendered inapplicable because two crimes, convictions for which were relied on had been committed in another county (Ky. Stats., sec. 1130).

4. Criminal Law. — Where habitual criminal statute is invoked, the accused is not tried for former crimes, but evidence of two former convictions merely authorizes increased penalty on third conviction (Ky. Stats., sec. 1130).

5. Larceny. — Value of property named in grand larceny indictment must be alleged and proved (Ky. Stats., sec. 1194).

6. Larceny. — In grand larceny prosecution, unless evidence shows without contradiction that value of property is $20 or more, instruction for petit larceny must be given (Ky. Stats., sec. 1194).

Appeal from Crittenden Circuit Court.

W.J. POSTLETHWEIGHT and T.C. BENNETT for appellant.

BAILEY P. WOOTTON, Attorney General, and RAY L. MURPHY. Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE REES.

Reversing.

Hallie Lovan and Carl Wedding were jointly indicted for the crime of grand larceny. In the second count of the indictment, it was charged that Lovan had been convicted of felony twice before the present prosecution. On his separate trial he was convicted and his punishment fixed at life imprisonment under the habitual criminal statute. Ky. Stats. sec. 1130.

He first insists that the trial court erred in overruling his motion for a directed verdict of acquittal, since the only witness whose testimony tended to connect him with the crime was an accomplice and there was no corroborative evidence.

Earl Grimes was introduced as a witness for the commonwealth, and he testified that he, appellant, and Carl Wedding arrived in Marion, Ky., about 4:30 o'clock on the afternoon of November 24, 1934. They were traveling from Henderson to Princeton. They ate supper in Marion, and Wedding suggested that they steal an automobile. He later reported that he had located a car with the ignition key in it, and Wedding and Lovan got in the car, drove to where Grimes was standing, and the three men went to Princeton. They left the car near the railroad yards, and spent the night in a freight car. Lovan drove the car from Marion to Princeton.

Lummie Clark owned the stolen car, and he testified that he parked it in front of his garage near the post office about 5:30 o'clock, and about 7 o'clock discovered that it had been taken. He immediately notified the Marion police, who in turn got into communication with the chief of police at Princeton. The stolen car was recovered about 9 o'clock and returned to the owner. Appellant was arrested on the following morning near the place where the car was found. Clark testified that he saw appellant and Grimes in Marion near the place where his car was parked, shortly before it was stolen. Albert Agee saw appellant in Marion on the night the car was stolen. Roy Malcolm, sheriff of Crittenden county, saw appellant in Princeton the morning after the car was stolen, and appellant first told him that his name was Harold Taylor, but later stated that his name was Arion Lovan. He admitted that he had been in Marion, but claimed that he had walked to Princeton during the night. It had rained steadily during the night, but his clothes were dry when he was arrested.

Appellant was seen near the car shortly before it was stolen, and within a few hours was arrested in another county near the place where the car was found. He gave an assumed name, and made a palpable misstatement as to how he had traveled from Marion to Princeton. Conceding that Earl Grimes was an accomplice there was other evidence, sufficient to meet the requirements of section 241 of the Criminal Code of Practice, tending to connect appellant with the commission of the crime. Williams v. Commonwealth, 257 Ky. 175, 77 S.W. (2d) 609.

F.P. Feezal, clerk of the McCracken circuit court, produced an order book of that court and read two judgments entered at...