Mullins v. Commonwealth
| Decision Date | 28 January 1941 |
| Citation | 285 Ky. 282 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Mullins et al. v. Commonwealth. |
4. Indictment and Information. — Generally an indictment is sufficient which charges an offense denounced and defined by statute, if indictment is as fully descriptive, literally or substantially, as the language of the statute, so that defendant is thereby fully in formed of the particular offense charged and the court enabled to see therefrom on what statute the charge is founded.
5. Indictment and Information. — An indictment which alleges every essential fact and circumstance and every ingredient of the crime being charged without any attempt to use the language of the statute defining the crime is sufficient.
6. Indictment and Information. — In charging a statutory offense, criminal intent or criminal knowledge need not be alleged where the statute does not make such intent or knowledge essential ingredient of the offense charged.
7. Indictment and Information. — In charging a statutory offense it is unnecessary to use "feloniously" or like technical words which were commonly regarded as indispensable at common law, where the statute does not include such words or elements in the description of the offense charged.
8. Automobiles. — The taking of an automobile without an intention to steal it would be but a trespass except for the statute denouncing such act as constituting grand larceny (Ky. Stats., sec. 2739g-58).
9. Larceny. — The "animus furandi" or "felonious intent" in a charge of grand larceny consists in the fraudulent and wrongful taking of another person's property with the intent to convert it to the taker's use and to deprive the owner of his property permanently.
10. Larceny. — A "felonious taking" means a taking proceeding from an evil heart or purpose and is covered by the word "steal."
11. Automobiles. — Under the statute denouncing as guilty of grand larceny any one who "shall take, drive or operate a vehicle without the knowledge and consent of the owner," the taking or operation of the automobile need be only without the owner's consent or permissive knowledge, and therefore the fraudulent intent to deprive the owner of his property permanently, which is essential to the offense of grand larceny at common law, need not be alleged or proved (Ky. Stats., sec. 2739g-58).
12. Indictment and Information. — An indictment, which in the language of the statute charged a violation of the statute denouncing as guilty of grand larceny any person who takes, drives or operates a vehicle without the knowledge and consent of the owner, was not demurrable on ground of failure to charge that acts were done feloniously (Ky. Stats., sec. 2739g-58).
13. Criminal Law. — Where the evidence of guilt or innocence was close and the testimony of an absent witness so material that the verdict might have been changed thereby, trial court's refusal to grant defendant a continuance in order to procure the attendance of such witness would constitute reversible error.
14. Criminal Law. — In prosecution for taking, driving or operating an automobile without the owner's knowledge or consent, trial court did not abuse its discretion in denying defendants a continuance for the purpose of procuring the presence as a witness of the owner of taxicab, in which defendants had come to town and which defendants asserted they thought was the automobile they were operating when arrested, where absent witness' testimony would merely corroborate that of the defendants and would not indicate that defendants were authorized to drive the taxicab at the time in question (Ky. Stats., sec. 2739g-58).
Appeal from Whitley Circuit Court.
C.R. Luker for appellants.
Hubert Meredith, Attorney General, and Wm. F. Neill, Assistant Attorney General, for appellee.
Before Flem D. Sampson, Judge.
Affirming.
Mrs. W.L. Taylor parked her automobile, unlocked, on a street in Corbin, went into a nearby grocery about 7 o'clock one night in January, 1940. O.A. Miles, a constable, on the other side of the street had his attention attracted by the racing of the motor and the quick starting of her machine. Likewise, a private citizen, Chet Harp. Believing the occupants of the car might be drinking the officer went across the street and as he approached the car two men ran from it. One went under a nearby truck. With Harp's assistance the officer arrested them. They refused to give their names and offered no excuse or reason for their conduct. The car had been moved a few feet. The two men, Gus Mullins and Ira Smith, were convicted of violating Section 2739g-58 of the Statutes, and each sentenced to imprisonment for one year.
The defendants lived in London and had gone that afternoon to Corbin in the taxicab of Tolman Gregory, though it appears it was not as paying passengers. They testified that he told them where he would park his car, which was near the place Mrs. Taylor's car was. They arranged to meet at the "Flaming Inn" for the return trip. They did not claim they were to get the taxi and take it to the inn; but Gregory let them drive it sometimes. They had mistaken Mrs. Taylor's car for Gregory's and did not learn of their error until the accelerator stuck. When the officer approached with a pistol in his hand they got out and ran and kept silent because they had been drinking and one of them had some "rubbing alcohol." While the taxicab and Mrs. Taylor's car were of the same make and about the same color, one bore a Laurel county license plate and the other a Whitley county. The taxi usually conspicuously displayed a card showing it to be such. The defendants' actions fully justified the conclusion that they purposed not only to drive and operate Mrs. Taylor's car without her consent but intended to steal it, and would have gotten away with it but for the diligence of the officer. The car was moved only a few feet and it is argued that this was not operating or driving it within the meaning of the statute. The language is "take, drive or operate." The defendants did take the car into their possession. Section 2739g-1 of the Statutes defines "operator" as "the person in actual...
To continue reading
Request your trial