Lunce v. Com.
| Decision Date | 03 March 1942 |
| Citation | 289 Ky. 706,160 S.W.2d 3 |
| Parties | LUNCE v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County; J. S. Forester, Judge.
Mart Lunce was convicted of grand larceny by unlawfully taking driving or operating an automobile without the owner's knowledge or consent, and he appeals.
Reversed.
W. L Hammond, of Pineville, for appellant.
Hubert Meredith, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.
STANLEY Commissioner.
Mart Lunce appeals from a judgment of conviction of the crime of grand larceny by having unlawfully taken, driven or operated an automobile without the knowledge and consent of the owner. Section 2739g-58, Statutes.
W. H Collett, the owner, left a "pick-up" truck near the "Park Club" where there were a number of people and other cars while he went into a nearby pasture to milk his cows about half past seven one evening in September, 1941. As he was returning he saw the appellant and Ed Leisure riding away in his truck in the direction of Pineville. Leisure was driving. This was near Middlesboro in Bell County. Collett chased his car in another automobile but his way was blocked and he did not overtake it. The Pineville police notified the officers of nearby cities of the taking of the truck and two Corbin policemen stopped it in that city and arrested Lunce and Leisure. The men gave wrong names and said they lived in East Bernstadt, which was not true. Neither officer testified as to which man was driving when they stopped the truck. The officers testified that while taking the prisoners to Pineville "they" told them they had bought the truck from a used car lot in Knoxville where they had been to get some furniture. It appears from the cross-examination that Leisure had done most of the talking. Both men had been drinking. At Pineville "they" told the officers they had borrowed the truck from two men at the foot of Log Mountain to get a load of liquor from Rockcastle County.
Lunce was tried separately from Leisure. Neither testified. Garnett Horn, of Pineville, related that Lunce had gone with her that morning to London and they had been to Mabel Cox's farm in Laurel County during the day. While they were returning to Pineville that night, about eight o'clock, they "had a flat at Flat Lick." They stopped to fix it at Tinsley's garage and the truck involved in the prosecution, driven by Ed Leisure, stopped there. Nobody was at the garage at the time. Lunce got out of the woman's car and got into the truck. He was drunk. Mabel Cox's evidence is the same.
Disregarding as the jury did, the testimony of the two women that Lunce became a passenger in the truck at Flat Lick, we have evidence that, although Leisure had done the actual driving and operating of the car, Lunce was with him when it was taken under circumstances sufficient to establish knowledge that it was not Leisure's truck. This, coupled with the defendant's subsequent conduct and false statements, constitute sufficient evidence to support the verdict. It was not necessary that Lunce must have done the actual driving of the car. There was concert of action and joint guilt proved by the Commonwealth. Means v....
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