Phelps v. Com.
| Decision Date | 09 October 1934 |
| Citation | 255 Ky. 655,75 S.W.2d 217 |
| Parties | PHELPS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Whitley County.
Ted Phelps was convicted of grand larceny, and he appeals. Affirmed.
J. B Johnson, of Williamsburg, and R. C. Browning, of Corbin, for appellant.
Bailey P. Wootton, Atty. Gen., and H. Hamilton Rice, Asst. Atty Gen., for the Commonwealth.
Eugene McFarland, Ted Phelps, and Gus Phelps were indicted by the grand jury of Whitley county, charged with the crime of grand larceny committed by taking, stealing, and carrying away an Oakland automobile of greater value than $20, the personal property of Edward Lay, without his knowledge and consent, with the fraudulent intent to convert it to their own use and to deprive permanently the owner thereof. McFarland, on a plea of guilty, was found guilty by the jury and his punishment fixed at confinement in the state reformatory for a period of one year. Ted and Gus Phelps were jointly tried before a jury resulting in the acquittal of Gus and the conviction of Ted. His punishment was fixed at confinement in the state reformatory for a period of one year. He is here insisting instruction No. 1 is erroneous; an instruction on petty larceny should have been given, and the evidence is insufficient to sustain a conviction.
Instruction No. 1 reads: "If you believe from the evidence in this case beyond a reasonable doubt that the defendants, Ted Phelps and Gus Phelps, *** without the consent and against the will of the owner thereof, took, stole and carried away from the possession of Edward Lay, an Oakland automobile of greater value than $20.00, and parts of same, the personal property of Edward Lay, *** you will find the defendants or either of them about whom you so believe guilty of grand larceny, as charged in the indictment. ***"
The instruction is criticized because the word "and" is used thus: "Ted Phelps and Gus Phelps," and because the words "and parts of same" are used in the connection in which they are used in the instruction.
It is argued:
The reading of the instruction as a whole shows the fallacy of this argument. The fact the jury acquitted Gus and convicted Ted plainly shows the jury did not interpret the instruction as Ted now presents in his criticism of it. Notwithstanding the use of the conjunction "and" to which the objection is now directed, the jury correctly read and followed the instruction authorizing it to find Ted and Gus or either of them, not guilty. Even though the use of the word "and," instead of the word "or," should be regarded a technical error, since the jury correctly read the instruction and acquitted the one and convicted the other, it is thus demonstrated that it, as it is written, was not prejudicial.
The inclusion of the words "parts of same" in the instruction immediately following the phrase "took, stole and carried away from the possession of Edward Lay an Oakland automobile of a greater value than $20.00," by the conjunction "and," does not convey the impression that Ted and Gus were being tried for stealing parts of the automobile. Before it was authorized to find Ted guilty, the jury was required by the instruction to believe from the evidence beyond a reasonable doubt that both the "Oakland automobile and parts of same" were of greater value than $20, and were taken, stolen, and carried away from the possession of Lay, as defined in the instruction. The jury was not authorized by it to find either of them guilty if it merely believed from the evidence beyond a reasonable doubt that "parts of same," "the personal property of Edward Lay," were taken as set forth in the instruction. Whilst the use of the words "and parts of same" were entirely unnecessary, yet their presence in the instruction was not prejudicial to the substantial rights of the accused. Indeed, the instruction emphasizes the thought the jury was not authorized to find him guilty unless it believed from the evidence, beyond a reasonable doubt, he was guilty of stealing both "the automobile and the parts of same."
The insistence the verdict of the jury is not sustained by the evidence requires a review of it. Edward Lay resided at Corbin and owned an Oakland automobile of the value of $75 or $100. When it was stolen, it was on Gordon street, below the home of Lay. It was taken and carried away in the nighttime without his knowledge and consent. Ted Phelps and Eugene McFarland were in Corbin on that Saturday night. In Lay's automobile they left Corbin on that night, about 10 o'clock, to go, and did go in it, to Bald Rock in Laurel county about sixteen miles from Corbin where Gus Phelps, at that time, resided.
McFarland admitted he stole Lay's automobile and asserted he was alone at the time. He further testified that he and Ted went in it to Bald Rock to see Gus Phelps so he could purchase of the latter a pistol, which he wanted. Ted Phelps claimed that he made the trip because "he (McFarland) wanted him to go down to the home of his brother (Gus)." They arrived at the home of Gus in the nighttime; slept in the car until daylight. The next day there was a baptizing in the community. Ted was asked: "You went at night to get ready for it?" His answer was: "Yes, sir." The Phelpses and McFarland agree in their testimony that the three of them left Bald Rock Sunday night between 9 and 10 o'clock in Lay's automobile and arrived at "Craig's Creek Hill in Laurel County" about 1 or 2 o'clock in the daytime, when the automobile got out of condition; gas was obtained at Silas Prewitt's and on Craig's Creek Hill, while going down hill, it ran into a stump; again they started it and, after going about half way up the hill, it would not run and they left it, where Lay regained the possession of it, at which time it was stripped of its...
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... ... See Phelps v ... Page 320 ... Commonwealth, 255 Ky. 655, 75 S.W.2d 217 (1934). The defendant offered evidence from which the jury might have found that ... ...
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Buchanan v. Com.
... ... stolen property is sufficient to cast on the accused the ... burden of explaining his possession, and it is for the jury ... to say whether his offered explanation shall be accepted or ... rejected. Jacobs v. Commonwealth, 260 Ky. 142, 84 ... S.W.2d 1; Phelps v. Commonwealth, 255 Ky. 655, 75 ... S.W. 217. Appellant gave an unusual explanation of his ... possession of the stolen property, and, in addition, his ... reputation for truth and veracity was assailed. Under the ... circumstances it was the province of the jury to determine ... whether or ... ...
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...raise the inference that it contained something favorable to the accused. Wharton's Criminal Evidence, § 142. Cf. Phelps v. Commonwealth, 255 Ky. 655, 75 S.W.2d 217. See McClure v. McClintock, 150 Ky. 265, 150 S.W. 332, 42 L.R.A.,N.S., 388; and 20 Am.Jur., Evidence, § As a general propositi......
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