Miller v. Commonwealth

• Decision Date: 24 January 1941
• Citation: Miller v. Commonwealth, 285 Ky. 251, 147 S.W.2d 394 (Ky. Ct. App. 1941)
• Parties: MILLER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

147 S.W.2d 394

285 Ky. 251

MILLER v. COMMONWEALTH.

Court of Appeals of Kentucky

January 24, 1941

Appeal from Circuit Court, Monroe County; J. C. Carter, Judge.

Malcomb Miller was convicted of breaking into a store and stealing merchandise, and he appeals.

Affirmed.

Jas. C Carter, of Tompkinsville, for appellant.

Hubert Meredith, Atty. Gen., and Wm. F. Neill, Asst. Atty. Gen., for appellee.

MORRIS Commissioner.

Appellant along with Mayes and Haynes, was charged with breaking into the store of one Quinn and stealing a quantity of merchandise. When the indictment was called the commonwealth elected to try appellant. A jury returned a verdict of guilty, inflicting the minimum fixed by K. S. Sec. 1164, one year in the penitentiary. In support of motion for a new trial appellant set up seven or more grounds, most of these are abandoned on appeal here, and it is only argued the judgment should be reversed, because:

(1) The evidence was insufficient to support the verdict, since the inculpatory testimony was given by an accomplice, and not corroborated, citing Criminal Code of Practice, Secs. 241 and 242.

(2) The conviction was had on circumstantial evidence, which was more consistent with defendant's innocence, rather than guilt citing Moore v. Commonwealth, 223 Ky. 128, 3 S.W.2d 190, and Tarkaney v. Commonwealth, 240 Ky. 790, 43 S.W.2d 34.

The first-named case was affirmed; the second reversed, both holding to the rule that conviction may be had on circumstantial evidence alone, but it must be of such character that it may not be reconciled with the presumption of innocence, and of such force as to exclude every reasonable hypothesis of innocence. For the purpose of discussing this case, the rule as stated may be admitted, and likewise that there must be sufficient corroboration of the testimony of an accomplice to authorize conviction. We think a statement of the facts will demonstrate that neither contention is of such merit as to justify us in disturbing the judgment.

Quinn conducted a general store in Monroe county. He locked his store on Saturday night, March 16, 1940, and on his return the next morning discovered that some person or persons had broken a glass out of a rear window, raised it, and from appearances, had removed through the front door, sugar, flour, lard, grass seed, and other merchandise, including a cross-cut saw. Signs indicated that a truck had been parked near the store. Quinn at once complained to the sheriff, who with others repaired to the store and made examination. The officers had no difficulty in tracing the truck, the wheels of which made a peculiar mark.

In their investigation they ran across Mayes, who directed them to the home of Haynes, where they found a truck, the tires of which made identical marks. This truck, which belonged to Haynes, was pulled up to the side of the barn, and near it wagon tracks, which led to Miller's house, where the officers went and found Miller. They told Miller that they had come for "the stuff that was stolen, and that he had helped to carry away," and appellant answered, "All right, look anywhere." A casual search led them to a room which was not used as living quarters, where they found 19 pairs of overalls, a quantity of sugar that had been removed from Quinn's sacks and poured into glass jars. A quantity of lard had been melted and placed in other receptacles; they also found cigarettes, chewing gum and other articles. They found timothy seed, but did not locate a sack of clover seed or the saw. The recovered goods were returned to Quinn.

Miller lived on Haynes' place, and was working for him. He freely told the officers that he and Mayes had brought the goods to Haynes' place, later procuring a wagon team and hauled them to Miller's home. The sheriff said that Miller said, "I am guilty. I didn't go into the store, but backed out. I want to get out of this the best way I can. I am innocent of stealing the stuff," and related his activities, which do not differ materially with such as told by Mayes, the accomplice.

Mayes admitted that he broke into the store. He got in company with Miller in Glasgow on Saturday evening. They had according to Mayes a week before agreed on robbing the store. They met at a service station and proceeded to Quinn's place, Mayes driving the truck, which he parked "Close enough so that I could get the stuff, carry it out and put it in." Mayes then went into the store, but when he came back, Miller said that the "dogs were making too much racket, I am going; you can pick me up." Mayes then describes what he got from the store. He finished loading, and drove about a mile and picked up Miller, who was waiting for him.

The two then drove to Glasgow looking for Haynes; found him, and the three, Miller driving part of the way, went to Haynes' barn. The truck was out of gas, so Miller got Haynes' team, and a wagon from one Butler, and the merchandise was hauled to Miller's home, with the exception that Haynes bought a sack of clover seed, giving Miller a check for $5.50, which was cashed for him on Sunday morning by a merchant. Miller says this check was for work he had done for Haynes. Mayes and Miller returned then to Haynes' home, where Haynes paid Mayes a "small amount" and Miller took Mayes back to Glasgow. The foregoing closed the commonwealth's testimony, and the court overruled appellant's motion to direct a favorable verdict.

Miller thirty-two years of age, denied that he had ever made any agreement with Mayes to rob Quinn's store. He says that on the Saturday he and Haynes took some livestock to town; he left Haynes in town, and drove the truck...