Moore v. Commonwealth
| Decision Date | 23 June 1944 |
| Citation | 181 S.W.2d 413,298 Ky. 14 |
| Parties | MOORE v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Knox County; Flem D. Sampson, Judge.
Roy Moore was convicted of dwelling house breaking, and he appeals.
Reversed and remanded.
J. B Campbell, of Barbourville, for appellant.
Eldon S. Dummit, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.
This appeal is from a judgment of the Knox circuit court sentencing appellant to the state penitentiary for nine years on an indictment charging him with the offense of dwelling house breaking.
The appellant had been inducted into the United States Army in April, 1943, and stationed at Camp Haan, California. On September 12, 1943, he was granted a furlough which expired September 28, 1943. He did not report back to his camp on September 28, or at all, but stayed at the home of his father, Perry Moore, who lives in Knox county, Kentucky. On October 27 appellant was arrested at his father's home by Lane Bertram, a state highway patrolman, and at the time of the arrest the officer informed appellant that he was arresting him on a charge of deserting the army. The officer took appellant to London, Kentucky, and lodged him in jail and he stayed in the London jail until November 5 when he was removed therefrom and taken to Barbourville in Knox county, and was there lodged in jail at about 11 a.m and at about 1 p.m. the grand jury of that county returned an indictment against him, charging him with dwelling house breaking. On that day, November 5, appellant signed a statement, apparently prepared by the highway patrolman, in which he told about being stationed at the camp in California, was granted a furlough and failed to return to the army, and was arrested on October 27. He further said in that statement that while he was out he was associated with a boy by the name of Don Phelps and they got a car (a Ford automobile) from Zola Partin which they took without her permission, and also later one evening he and Phelps were passing by Zola Partin's house and no one was at home and he went into the house through a window and got a rifle and took it to Corbin and sold it; that he told Bertram, the officer, where the house was located and Bertram located the rifle and returned it to Zola Partin. Appellant further said in that statement: 'I had rather go to the penitentiary than be returned to the army.' Immediately after the indictment was returned against appellant he was brought into court and put on trial. He had no attorney and did not ask the court to appoint counsel for him, and he was tried without the advice and assistance of counsel or the presence of any member of his family. The Commonwealth's attorney introduced the highway patrolman, Bertram, as a witness, together with the statement signed by appellant, indicated above. This was the only evidence offered by the Commonwealth and appellant offered no evidence at all.
Counsel was employed for appellant after he was convicted and motion and grounds for a new trial were filed, supported by numerous affidavits including those of appellant and Zola Partin whose house appellant was charged with breaking into. According to Zola Partin's affidavit she did not procure the indictment and had nothing to do with the prosecution and said that she was not interested in it. She said that appellant had been staying at her house with her and her nephew and he went in and out of the house when he wanted to. She further stated that for about three months before this occurrence they locked the front door and the key was lost and they used an open window about 24 by 30 inches, near the front door, which had been broken out for about three months and everybody, including the family and neighbors, used this window as a means of ingress and egress. She said there was nothing that could be broken, and all that anyone had to do was go through the open space. She said she saw no indication of any breaking of any kind and if she had not missed the rifle she would not have known that anyone had been in the house. She said she had known appellant's family for several years and had always told appellant that any time he came to her house and she was not there to go in if he wanted to. Appellant's affidavit was of a like nature with respect to the use of the open window and the permission of Zola Partin for him to enter her home any time he desired. He further stated that the arresting officer told him...
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...Two of the later cases so determining argument (a) are, Hamlin v. Commonwealth, 287 Ky. 22, 152 S.W.2d 297 and Moore v. Commonwealth, 298 Ky. 14, 181 S.W.2d 413, and in each of them the question was presented on appeal to this court from the judgment of conviction. The convicted defendants ......
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