Reed v. Commonwealth

• Decision Date: 14 February 1930
• Parties: REED v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

25 S.W.2d 77

233 Ky. 184

REED v. COMMONWEALTH.

Court of Appeals of Kentucky

February 14, 1930

As Modified on Denial of Rehearing March 21, 1930.

Appeal from Circuit Court, Boone County.

Frank Reed was convicted of grand larceny, and he appeals. Reversed, with instructions.

Stephens L. Blakely and John T. Murphy, both of Covington, for appellant.

J. W Cammack, Atty. Gen., and Douglas C. Vest, of Frankfort, for the Commonwealth.

DIETZMAN J.

Appellant was convicted of the crime of grand larceny, sentenced to serve five years in the penitentiary, and appeals. As grounds for reversal, appellant contends, first, that he was entitled to an instruction on petit larceny, and, secondly, that the court erred in admitting certain testimony over his objection.

The crime for which appellant was convicted consisted of the theft of two automobile tires. The evidence shows that the tires which it is claimed appellant stole were balloon tires size 33-600, and cost when newly bought from Sears-Roebuck &amp Co. $19.85 each. At the time these tires were stolen, one of them had been run for over 1,000 miles, and had had either a very bad puncture or a "blow out," for the casing had a large vulcanized place upon it. The other tire had been run about 50 miles, but it too had had to be vulcanized. Both tires were produced at the trial for the jury's inspection. The only evidence concerning the value of these tires at the time they were stolen was that given by the owner, and, although on direct examination he stated that they were worth $30, his cross-examination quickly developed that he knew nothing of the value of second-hand tires. Indeed, he very frankly stated that he did not know such value. The court instructed only on grand larceny.

In view of the unsatisfactory evidence concerning the value of these tires, and in view of the fact that the use and ownership of automobiles are now so widely spread, and that those who own machines have some idea as to values new and second hand of accessories, such as tires, and inasmuch as these tires, one of which at least had been severely used, were before the jury, which could very reasonably in the light of their condition have discounted considerably the value of them guessed at by the owner, for that is all his evidence amounts to, we are of the opinion that the court should have instructed on the question of petit larceny. However, as appellant did not make the failure of the court to instruct on the whole law of the case a ground in his motion for a new trial, we cannot reverse this case for the failure of the court to so instruct. As the case must be reversed on the second ground relied upon, if the evidence as to value on the next trial be no stronger than that on the last, the court will instruct on the subject of petit larceny.

As to the second contention of the appellant that the...