Owens v. Commonwealth

• Citation: 181 Ky. 378
• Parties: Owens v. Commonwealth.
• Decision Date: 24 September 1918
• Court: Kentucky Court of Appeals

Page 378

181 Ky. 378

Owens v. Commonwealth.

Court of Appeals of Kentucky.

Decided September 24, 1918.

Appeal from Jefferson Circuit Court (Criminal Division).

JAMES P. GREGORY and CLIFFORD & STEINFELD for appellant.

CHARLES H. MORRIS, Attorney General, and OVERTON S. HOGAN, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

The grand jury of Jefferson county returned an indictment against the appellant, Sam C. Owens, and one Joseph Biller charging them with the offense of criminal conspiracy committed by combining and conspiring together and with other persons unknown to the grand jury for the purpose of fraudulently and unlawfully extorting from W. E. Chess money, and for the purpose of injuring his character and reputation by falsely charging him with the commission of the crime of having carnal intercourse with a young girl by the name of Barbara Miller. The indictment set out at length the details of the conspiracy and its purpose, but the substance of it was as we have stated.

Biller was not brought before the court on the indictment but Owens, when put upon his trial, was found guilty by the jury and his punishment fixed at a fine of $100 and imprisonment in the county jail for one year.

On this appeal by Owens it is insisted that the judgment on the verdict should be reversed and a new trial ordered on account of error committed by the trial court (1) in the admission and exclusion of evidence; (2) because there was no evidence to support the charge of conspiracy; (3) for errors committed in giving instructions; (4) for the failure of the trial court to admonish the jury at each adjournment of the court during the trial; (5) on account of a prejudicial admonition given by the court to the jury in relation to certain evidence introduced on the trial.

Taking up these general assignments of error in the order named and confining ourselves to those pointed out in the brief of counsel for appellant, we find that on the trial of the case Chess, the prosecuting witness, said, in the course of his testimony, that some threats which were made against him by Owens with a view of extorting money from him were communicated to him by Joe Hofgesang, and to his evidence relating what Hofgesang said an objection was made and sustained by the court. If this offered evidence was incompetent we think the error was cured by the action of the court in sustaining an objection to it. It is said, however, that the court should, in addition to sustaining the objection, have admonished the jury not to consider the evidence, and this would have been the proper practice, but it does not appear that any motion was made by counsel for Owens to exclude from the consideration of the jury the very brief reference to what Hofgesang said and we do not think the error, if any, committed by the court in failing to admonish the jury as indicated, prejudiced the substantial rights of Owens, or was so material as to justify a reversal of the judgment upon the ground relied on.

Another assigned error is that the court improperly permitted Chess to relate a statement made to him by Biller, the person who, it was charged in the indictment had conspired with Owens, and it is said that evidence of the declaration of Biller was incompetent because there was a failure to show any conspiracy between Biller...