Means v. Commonwealth

• Citation: 197 Ky. 401,247 S.W. 12
• Parties: MEANS v. COMMONWEALTH.
• Decision Date: 23 January 1923
• Court: Court of Appeals of Kentucky

247 S.W. 12

197 Ky. 401

MEANS v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 23, 1923

Appeal from Circuit Court, McCracken County.

Floyd Means was convicted of unlawfully taking, driving, and operating a motor vehicle without the knowledge or consent of the owner, and he appeals. Affirmed.

Nichols & Nichols, of Paducah, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

Complaining of his conviction in the court below of the offense of "unlawfully taking, driving and operating a motor vehicle without the knowledge or consent of the owner," denounced as a felony by Kentucky Statutes, § 2739g58, Floyd Means seeks by this appeal the reversal of the judgment manifesting that conviction. Though jointly indicted with two other persons, Jewell Means and Frank Frizzell, for the offense charged, the appellant was accorded a separate trial. The verdict of the jury, by which he was found guilty of the offense, fixed his punishment at confinement of two years in the penitentiary.

The appellant assigns as error, entitling him to the reversal of the judgment, the grounds that were filed in support of his motion for a new trial, overruled by the circuit court, viz (1) Failure to properly instruct the jury. (2) Admission of incompetent evidence. (3) Failure to give an instruction peremptorily directing the jury to return a verdict of acquittal.

It appears from the testimony of one Lewin Miller, a witness for the commonwealth, that, during the summer of 1922, about 8 o'clock p. m., he ran a Hudson automobile worth $2,000 of which he was the owner, from his residence to the corner of Fifth street and Kentucky avenue, in the city of Paducah, where he temporarily parked and left it to attend to a matter of business near that point. Upon returning 20 minutes later to where he had parked the automobile, he discovered that it had been taken and moved away in his absence by a person or persons then unknown to him, which taking and removal of the car was without his consent or knowledge. Miller at once informed the city police of the disappearance of his car and asked their assistance in recovering it. He also procured from a nearby garage a Ford car, and started out in search of his stolen automobile. It was found at 9:30 o'clock the same night at the entrance of a suburban park in which a carnival was being held, where it had just been abandoned by the appellant, his brother Jewell Means, and Frank Frizzell.

It also appears from the testimony of Joe Phillips, another witness for the commonwealth, that he and a friend, Mahlon Berry, were in Phillips' car at the park the night the car of Miller was taken; that Phillips knew Miller's car, and that as his (Phillips) car got to the park entrance it was caught in a traffic jam of cars which compelled it to stop by the side of a Hudson car occupied by appellant, Jewell Means, and Frank Frizzell, that was also caught in the jam, and the latter car Phillips then identified as that of Miller and the occupants as the three persons named. He asked the latter where they were going, and where they got the car they were occupying. In reply to which they said they got the car in front of the Masonic building and were going to the carnival. Phillips thereupon called Berry's attention to the fact that the car in question was the property of Miller, told him to keep a watch on it while he (Phillips) went on the hunt of Miller, for which purpose he left his own car in charge of Berry. What he said to Berry was evidently overheard by the occupants of the Miller car, for he had gotten but a short distance from his own car when he discovered that they had abandoned the Miller car and were fleeing across an adjoining field.

Frank Frizzell having previously made a voluntary and full confession of the part he took in the theft of the Miller automobile, and others not involved in this prosecution, was introduced as a witness for the commonwealth. Frizzell testified that on the night of the carnival and a few minutes before the taking of the Miller car, he and Jewell Means were standing on Hays avenue, Paducah, engaged in conversation respecting their purpose of attending the carnival, where they were joined by the appellant, who had that evening ridden with them down town on the same street car; that the three then discussed the previous taking of automobiles in which they had engaged, and then agreed to take one that night and ride in it to the carnival. Following this agreement, the three started out to find an automobile they would wish to take, and, after examining and rejecting several, they discovered that of Miller which they decided to appropriate and did in fact take. By arrangement between the three, Frizzell and the appellant walked a square from the automobile, leaving Jewell Means to get it and overtake them which he did; and when the latter got to them with the car they entered it, and the three then rode in it out to the park to attend the...