Rains v. Commonwealth
| Decision Date | 26 February 1943 |
| Parties | RAINS v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Bell County; James S. Forester, Judge.
Bill Rains was convicted of housebreaking, and he appeals.
Affirmed.
Robert J. Watson, of Middlesboro, for appellant.
Hubert Meredith, Atty. Gen., and Arthur T. Iler, Asst. Atty. Gen for appellee.
PERRY Commissioner.
The grand jury of Bell county indicted the appellant, Bill Rains charging him with committing the offense of dwelling house breaking, denounced and defined by section 1162, Kentucky Statutes (KRS 433.180) as a crime, punishable upon conviction by imprisonment in the penitentiary for not less than two nor more than ten years.
Upon his trial on the charge, he was found guilty and his punishment fixed at confinement in the state reformatory for two years.
From the judgment entered on that verdict he has appealed, asking a reversal on the ground that considering all the evidence it is not shown the defendant either broke into and entered the house of Julia Booker, or took anything of value therefrom; and, further, that the evidence introduced on behalf of the commonwealth did no more than merely raise a suspicion that the defendant committed the crime charged which was insufficient to sustain the verdict of guilty returned against him.
The commonwealth, on the other hand, in answer to such contention, insists that as it established by its circumstantial evidence both the essential breaking of the dwelling house and the taking of something of value therefrom, required to constitute the offense, such showing, where supported by the further proof that the property was found in the possession of the defendant, or in the possession of a third person whose testimony showed he had obtained it from the defendant, was sufficient to make out a prima facie case of house breaking against the defendant.
As preliminary to our decision of the one question here presented as to the sufficiency of the commonwealth's evidence to sustain the verdict, it is to be kept in mind that to complete the charge of "house breaking", as defined by section 1162, Kentucky Statutes (KRS 433.180), the two facts of which the offense consists must be established: (1) The felonious breaking into the house and (2) the felonious taking away of something of value therefrom.
Appellant insists that the commonwealth's evidence was insufficient to establish these two facts, necessary, under the statute, to sustain the verdict of the jury finding him guilty of having committed this offense for which indicted.
In view of the one question here presented being that as to the sufficiency of the evidence to sustain the verdict of conviction, it becomes needful to summarize the evidence given by the two commonwealth witnesses and that of the appellant, who alone testified in his own behalf.
The testimony given by the prosecuting witness, Julia Booker, is to the effect that she owns a small home in the outskirts of Middlesboro, Ky. where she resides with her son, Jim Booker (or Tyle), a coal miner employed by the Big Jim Coal Co. and regularly working in its mines in Bell county. Further she testified that at the time her dwelling was broken into (about four o'clock) and her ham taken therefrom by someone, she had left her home to go over to her daughter's, who lived nearby, for a few minutes; that on leaving her house, she closed the door and, to keep it closed, wrapped or tied a cord, fastened to the door, around a nail; that upon returning to her home within a short time and opening this door, she discovered the cord was wrapped around the nail in a different manner from that in which she had wrapped it when leaving and also that there was salt on the cord of the same character as that she had used in curing the ham. Further she testified that after opening the door and going into the room where she had left the ham, she discovered it had been stolen or taken away and at once notified the police that her house had been broken into and a ham stolen therefrom; that this report soon became circulated in the neighborhood and that upon her neighbor, Harve Ellison (the other commonwealth witness) hearing it, he sent her word that he had just bought a ham from Bill Rains, the appellant, who had brought it to his house and sold it to him, at the time representing to him that he had gotten it from his brother, Garnett; and that upon being so informed, she at once went to Ellison's house, where she identified the ham as hers by the marks and measurements she had made on end of the ham.
Harve Ellison, the other commonwealth witness, gives the same account as to the appellant's having brought the ham to his house about four o'clock upon this occasion, shortly before he heard the report that Julia Booker's home had been entered and a ham stolen therefrom by someone. Further he testified that the appellant, when offering to sell him the ham, told him it had been given him by his brother, Garnett; also, that shortly after buying the ham, upon hearing that a ham had been stolen from Julia Booker's home, he reported to her the fact of this having just bought a ham from appellant, when she came over to his home and identified it, by certain marks and measurements, as the ham taken from her home.
On the other hand appellant, who alone testified in his behalf denied that he had either upon this occasion broken into and entered Julia Booker's house or had taken anything therefrom. He testified that he and Julia Booker's son, Jim Booker, had on the day before he sold the ham in question to the commonwealth's witness, Harve Ellison, been drinking together and that both of them having run out of whiskey and money, Booker had said that he would go to his house, where he lived with his mother, Julia Booker, and get some meat which they could trade for whiskey and that it was accordingly agreed that he was to pick up some coal along the railroad and bring it to the Booker home and dump it into the yard, which he did, when Booker gave him the ham, which he placed in a sack and soon thereafter took it away and disposed of it to Harve Ellison; that at the time he received the ham from Booker, he had no intention of stealing it as Booker told him the ham was his. In answer to the question as to whether he thought the ham had been stolen, he said, "Well, I would not...
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