Robinson v. Commonwealth

• Decision Date: 28 March 1941
• Citation: Robinson v. Commonwealth, 285 Ky. 838, 149 S.W.2d 502 (Ky. 1941)
• Parties: Robinson v. Commonwealth.
• Court: Supreme Court of Kentucky

Page 838

285 Ky. 838

Robinson v. Commonwealth.

Court of Appeals of Kentucky.

December 20, 1940.

As Modified on Denial of Rehearing March 28, 1941.

1. Indictment and Information. — Motion to quash indictment, because grand jury which returned indictment was not drawn from the wheel as provided by statute, came too late where a former trial resulted in a hung jury, and record showed that motion to quash was not made until second trial, since there was a "waiver" of the error, if any (Ky. Stats., sec. 2243).

2. Criminal Law. — In determining whether an accomplice's testimony has been sufficiently corroborated in conformity with statute, the test is to eliminate the evidence of the accomplice, and, if on examination of all remaining evidence there is sufficient inculpatory evidence tending to connect the defendant with the commission of the crime, there is sufficient "corroboration" (Criminal Code of Practice, sec. 241).

3. Criminal Law. — Sufficient "corroboration" of the testimony of an accomplice to warrant a conviction may be furnished by the suspicious conduct of the accused, such as flight after the crime was committed, or at the time of arrest or accusation, or attempts to bribe a witness (Criminal Code of Practice, sec. 241).

4. Criminal Law. — Corroborative evidence need not be of itself sufficient to establish a defendant's guilty connection with the perpetration of the crime, but need only tend to connect him with its commission (Criminal Code of Practice, sec. 241).

5. Criminal Law. — Flight of defendant, when officers approached him and his alleged accomplices at the time that the officers were successful in arresting one of the accomplices, when considered in connection with denial of defendant that he was at place of crime, though two witnesses testified that defendant and his accomplices were at such place, and other unusual behavior on part of defendant, was sufficient "corroboration" of the testimony of the accomplices to connect the defendant with the crime of feloniously tying down a train signal apparatus as denounced by statute (Ky. Stats., sec. 807; Criminal Code of Practice, sec. 241).

6. Railroads. — In prosecution for feloniously tying down a train signal apparatus as denounced by statute, defendant was not entitled to an instruction on the misdemeanor of injuring property without a felonious intent, because of the fact that the defendant when he allegedly wired down signal had no malicious intent but merely wished to stop train in order to ride on train (Ky. Stats., secs. 807, 1256; Criminal Code of Practice, sec. 264).

7. Criminal Law. — Trial judge did not err in failing to grant defendant a new trial on ground of "newly discovered evidence" that it was 8:05 p.m. when officers arrested defendant's alleged accomplice, and not between 10:30 and 11:00 p.m. as the officers testified, where the actual hour could only impeach the officers on an immaterial point and could not be reasonably expected to change the verdict on another trial.

8. Criminal Law. — In prosecution for feloniously tying down a train signal apparatus with a wire as denounced by statute, admission of testimony that defendant had half a pint of liquor at the place where the crime was perpetrated and that the liquor was gotten from defendant's home when the wire was obtained there did not constitute prejudicial error, where there was no showing that there was illegal possession of the liquor (Ky. Stats., sec. 807).

9. Criminal Law. — In prosecution for feloniously tying down a train signal apparatus as denounced by statute, testimony that defendant and his alleged accomplices at the time of the commission of the crime were on their way to get some bicycles was not material, and defendant's objection to it should have been sustained, but defendant's substantial rights were not prejudiced, as against contention that the testimony gave rise to the inference that defendant and his alleged accomplices were going to steal the bicycles (Ky. Stats., sec. 807; Criminal Code of Practice, sec. 340).

Appeal from Laurel Circuit Court.

C.R. Luker for appellant.

Hubert Meredith, Attorney General, and Wm. F. Neill, Assistant Attorney General, for appellee.

Before Franklin P. Stivers, Judge.

OPINION OF THE COURT BY SIMS, COMMISSIONER.

Affirming.

The Grand Jury of the Laurel Circuit Court jointly indicted Melvin Robinson, Leander Reed and Rowland Gill for the crime of feloniously tying down a train signal apparatus on the line of the Louisville & Nashville Railroad Company as denounced in Section 807, Kentucky Statutes. In separate counts the indictment charged each of the defendants with committing the offense and the others with being then and there present and aiding and abetting in its commission. On a separate trial defendant, Melvin Robinson, was convicted, his punishment was fixed at five years' confinement in the penitentiary and he prosecutes this appeal from the judgment entered on the verdict.

Defendant argues that the court erred in refusing to quash the indictment because the grand jury which returned it was not drawn from the wheel in the manner provided by Section 2243, Kentucky Statutes. There had been a former trial resulting in a hung jury and the record shows the motion to quash was not made until the case was called for the second trial. Therefore, the motion came too late. In Brannon v. Com., 215 Ky. 589, 286 S.W. 785, it was written that a motion to quash under Section 157 of the Criminal Code of Practice must be made at the time defendant is arraigned, or if there be no arraignment, upon the call of the indictment for trial; and if made thereafter, it comes too late and the error, if any, is waived. Also see Sloan v. Com., 211 Ky. 318, 277 S.W. 488.

The only grounds urged for reversal which we deem worthy of consideration are: (1) There was no evidence corroborating the accomplices which tends to connect the defendant with the crime, therefore he was entitled to a directed verdict of acquittal; (2) the court failed to instruct on the misdemeanor included in the felony charged in the indictment; (3) newly discovered evidence entitled him to a new trial; (4) incompetent evidence was admitted against defendant.

The contentions advanced require a recital of the evidence. There were three admitted accomplices, one of whom, Ed Lunsford, for some reason not shown in the record, was not indicted. The accomplices testified that about sundown on the afternoon of January 26, 1939, they got together at a railroad crossing known as Altmont, located in Laurel County about one mile from East Bernstadt; that in order to require a freight train to stop at this crossing so they might board it and ride to Corbin, some twenty miles distant, they agreed to tie down a railroad signal in Rattle Snake cut, which they knew would cause a passing train to make a brief stop near the crossing; that early in the afternoon of that day they were at defendant's home, which was not distant from the Altmont Crossing, and defendant cut five or six feet from his mother's clothesline with which he later tied down the railroad signal. The train did not stop at the tied down signal; however, it was traveling slowly due to the grade of the track at that point and all four of the boys boarded it and rode to Corbin.

Mr. and Mrs. Thomas Eaton, grandparents of Leander Reed, testified that about 10:00 o'clock on the night of January 26, all four of these boys left the Eaton home in Corbin. Millard Essex and F.W. Horsley, two railroad policemen, testified they had received word this signal had been tied down; that the four boys were in the railroad yards on the night of January 26, between 10:30 and 11:00 o'clock; that when they attempted to arrest them all escaped by running with the exception of Reed, whom they caught and put in jail. These officers testified they got within five yards of defendant and recognized him when he fled under the depot lights. Daw Ponder, signal maintainer for the railroad company, testified he was notified this signal was tampered with and that he removed the wire from the signal at 9:30 on the night of the 26th.

Defendant admits the accomplices were at his home between 2 and 3 o'clock on the afternoon of the crime, but denies he obtained the wire, or that he was in the company of the other three boys at the railroad crossing, or that he tied down the signal, or that he had any connection with the crime. He also denies that he went to Corbin with them on that night and his defense was an alibi. By several witnesses he proved that he went to the home of Roy Reed about 5:30 on the afternoon of January 26th, where he listened to a prize fight over the radio and returned to his home about 10:30 that night.

The...