Lunce v. Commonwealth
| Decision Date | 03 March 1942 |
| Citation | 289 Ky. 706 |
| Parties | Lunce v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Where evidence is such as to create doubt as to county in which offense charged was committed, such question should be submitted to the jury.
3. Criminal Law. — In trial for grand larceny by unlawfully taking, driving or operating an automobile without owner's knowledge and consent, instruction predicating conviction on jury's belief beyond reasonable doubt that defendant unlawfully, willfully and feloniously operated and drove truck without owner's consent, without charging that crime must have been committed in county of venue before finding of indictment, was error prejudicial to defendant in view of evidence warranting conviction because of occurrences in other counties though it was too favorable to defendant to extent that it authorized conviction only on proof of operation and driving.
4. Indictment and Information. — In every prosecution for crime, venue must be proved, and jury must find that offense was committed in county of venue as charged in indictment to warrant conviction (Ky. Stats., secs. 1145, 1146).
5. Larceny. — The correct penalty for grand larceny by unlawfully taking, driving or operating automobile without owner's knowledge or consent is not less than one nor more than five years' imprisonment as prescribed for grand larceny (Ky. Stats., secs. 114, 1194, 2739g-58).
Appeal from Bell Circuit Court.
W.L. Hammond for appellant.
Hubert Meredith, Attorney General, and Guy H. Herdman, Assistant Attorney General, for appellee.
Before J.S. Forester, Judge.
Reversing.
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...
To continue reading
Request your trial