Mathis v. Com.

• Decision Date: 24 October 1969
• Citation: 447 S.W.2d 641
• Parties: Billy Joe MATHIS and Billy W. Jones, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 641

447 S.W.2d 641

Billy Joe MATHIS and Billy W. Jones, Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 24, 1969.

William E. Scent, Reed, Scent & Reed, Paducah, for appellants.

John B. Breckinridge, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.

EDWARD P. HILL, Jr., Chief Justice.

The appellants were convicted on circumstantial evidence of the crime of breaking and entering the storehouse (a garage) of another (KRS 433.190) and each was given one year in prison. Neither appellant testified.

Appellants argue (1) they were entitled to a directed verdict; (2) trial error was committed in admitting certain hearsay evidence; (3) it was error for the trial court to correct the verdict in open court; and (4) they were and are entitled to have their conviction set aside or reversed under RCr 9.26 because their substantial rights have been prejudiced.

Donald Terry, who lived across the street from the Pennebaker Garage (the place broken into), testified that about 3 a.m., April 24, 1967, he observed two men leaving the Pennebaker Garage; that one man was tall and the other short and stocky; that they drove away in a light-blue Mercury automobile, a 1961 model with Tennessee license plates; that he immediately called Bob Hicks, chief of police of the town of Bardwell; that Hicks came to the garage immediately, and he and Terry found that the garage had been broken into and safe opened. Hicks called the Kentucky State Police at Mayfield, Kentucky, and Police Officer Simmons at Cairo, Illinois, a town across the Ohio River from Kentucky. Hicks gave Simmons the description of the two men and the automobile Terry had described to him.

About fifteen minutes after Hicks' call, the Cairo police stopped a light-blue Mercury automobile, a 1960 model with Tennessee license plates. Two men were in the car--one tall and the other one short and stocky. The car was first observed crossing from Kentucky into Cairo, Illinois.

The jury did not hear evidence that appellants had in their possession some of the property stolen from Pennebaker Garage, with the name 'Pennebaker' appearing on some of the property, as the trial court, for reasons not clear in this record, upheld the suppression of this evidence by an Illinois court. So for the purpose of testing the sufficiency of the evidence, we must assume that none of the stolen property was found in appellants' possession.

Appellants say this circumstantial evidence was not sufficient to convict them of the crime charged. Appellants argue that there are three U.S. highways that merge at Wickliffe and cross the Ohio River at Cairo, Illinois, and that one of those roads leads from Bardwell; consequently, appellants could have entered from either one of the other two merging highways.

Our latest word concerning the sufficiency of circumstantial evidence necessary to convict may be found in Moore v. Commonwealth, Ky., 446 S.W.2d 271 (decided October 17, 1969), and Brown v. Commonwealth, Ky., (decided October 10, 1969). See also Cissell v. Commonwealth, Ky., 419 S.W.2d 555, 557 (1967), from which we quote:

"When the evidence, even though it be circumstantial, affords fair and reasonable ground upon which the verdict of a jury might be rested, the case should go to the jury. It is only where the testimony in behalf of the commonwealth fails to incriminate the accused, or is wholly insufficient to show guilt, that an accused is entitled to a peremptory instruction."

Here there was evidence that two men fitting the description of appellants were seen at 3 a.m., leaving the scene of the crime in a 1961-model, light-blue Mercury automobile with a Tennessee license; within an hour appellants, fitting the description of the men seen leaving the scene of the crime, were stopped and arrested some sixteen miles away, while traveling away from the scene of the crime in an automobile fitting the description of the get-away car in every respect except for the relatively unimportant year model, which is a common mistake, particularly as to older model cars. It seems to us that the evidence affords fair and reasonable grounds on which the verdict is rested.

We have examined the numerous cases cited by appellants in their able and exhaustive brief and find facts in none of those cases constituting the strong circumstantial evidence found in the...