Roberts v. Com.
| Decision Date | 27 October 1961 |
| Citation | 350 S.W.2d 626 |
| Parties | Glenn ROBERTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
John J. Tribell, Pineville, for appellant.
John B. Breckinridge, Atty. Gen., William A. Watson, Asst. Atty. Gen., for appellee.
Glenn Roberts was indicted for armed assault with intent to rob as denounced by KRS 433.150. Upon his trial in January, 1961, he was found guilty of ordinary robbery under KRS 433.120 and received a sentence of five years in the penitentiary. He appeals.
Several grounds are urged for reversal of the judgment of conviction. Of these we believe two have merit, namely, (a) that an erroneous instruction was given; and (b) that incompetent and prejudicial evidence was admitted over appellant's objection.
This is a second appeal. In a previous opinion of this Court (Roberts v. Commonwealth, Ky., 339 S.W.2d 640), the facts are fully recited, and it will be unnecessary to repeat them in order to develop and resolve the two points we shall consider.
The trial court submitted an instruction covering assault with intent to rob as defined by KRS 433.150 and, in addition, one embracing robbery as set forth in KRS 433.120. It is contended the lastmentioned instruction should not have been given. We agree. The indictment charged only assault with intent to rob; and appellant was convicted of that crime at the first trial at which the jury was instructed to find him guilty or not guilty solely as to that offense. Appellant when tried relied upon an alibi as a defense, with the result that his presence at the time and place of the alleged offense was denied. The evidence shows conclusively that if any crime was committed it was a completed act of assault with intent to rob. Therefore, the jury should have been allowed to pass upon the single question of whether appellant did or did not perpetrate the crime of which he was accused. See Tackett v. Commonwealth, Ky., 275 S.W.2d 433, and Reed v. Commonwelath, 281 Ky. 189, 135 S.W.2d 867.
The instruction under ordinary robbery was objectionable for another reason. The trial judge no doubt concluded this offense was a lesser degree of the crime of assault with intent to rob. The crime of robbery, which is punishable within the purview of KRS 433.120, is a separate offense and not a lesser degree of the crime of assault with intent to rob described in KRS 433.150. See Adams v. Commonwealth, Ky., 264 S.W.2d 283. For this reason, also, it was error to allow the jury to determine under the evidence whether or not appellant may have perpetrated an act of ordinary robbery.
Another complaint we conclude is well founded concerns the testimony of two police officers of Cincinnati, Ohio, which the trial court allowed to be introduced over appellant's objection. Appellant, as a part of his defense, produced evidence which tended to establish he possessed a good reputation. After he was indicted, he was arrested in Cincinnati and returned to Kentucky, and at the trial the Commonwealth had these two officers take the stand as rebuttal witnesses to testify as character...
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