Sanderson v. Com.

• Decision Date: 26 September 1889
• Citation: Sanderson v. Com., 12 S.W. 136 (Ky. Ct. App. 1889)
• Parties: SANDERSON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

12 S.W. 136

SANDERSON v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 26, 1889

Appeal from circuit court, Graves county; C. L. RANDLE, Judge.

"Not to be officially reported."

W. J Sanderson, jointly with another, was indicted for grand larceny.He was convicted, and appeals.

D. G Park and Jas. Campbell, for appellant.

P. W Hardin, Atty. Gen., for the Commonwealth.

PRYOR J.

The accused, Sanderson, and one Brisendine were indicted in the Graves circuit court for grand larceny, the charge being a felonious taking of one hogshead of tobacco, the property of Matthews & Son.There was a demurrer to the indictment as a whole, and also a demurrer to each count in the indictment and the demurrers were overruled.It is not necessary to allude to the demurrer filed to the entire pleading, as it is in the usual form for grand larceny, and the defense was properly required to plead to it.It is insisted that the second count was defective, because it charged that the accused was, as is alleged, an accessory before the fact; that is, that he advised and procured two others named in the indictment to commit the larceny complained of.While this count may be defective, it was evidently intended by the pleader to present the case where the parties actually taking the property were advised and procured to take it for the benefit of the accused and his partner, and if they did commit the larceny, and deliver the property to the accused under such an arrangement, accused was as much guilty of larceny as the parties who took it from the warehouse.The first count for grand larceny embraced the charge in the second count, if the facts alleged have been established, and the failure to sustain the demurrer to the second count in no wise prejudiced the accused.It was in fact a statement only of how the larceny was committed.The third count in the indictment is for receiving stolen property knowing it to have been stolen, and was properly held good on demurrer.It may be joined with an indictment for larceny, as is expressly provided by the Code.The testimony in this case conduces to show that Wilkerson and England took the hogshead of tobacco at the procurement of Brisendine, the partner of Sanderson.That the two were partners in handling this product, and the tobacco of Matthews found its way into their possession, is a fact clearly established.Counsel for Sanderson maintains that, as the proof shows Brisendine received the stolen property, the fact that Sanderson, who was his partner, afterwards took charge of it, knowing it to have been stolen, does not constitute guilt on the part of Sanderson.We cannot concur in such a conclusion.These men were partners, and, assuming that Sanderson had no knowledge of the original taking by Wilkerson and England, but that his partner, Brisendine, received the property from them knowing it to have been stolen, and Sanderson, with a full knowledge of that fact, assumed control of the stolen property with a view of depriving the owner of its use, it is plain that both would be guilty of receiving the stolen goods, and a conviction must necessarily follow.

The argument of counsel is that, as the indictment alleges a joint reception of the stolen goods, and the proof showing the tobacco to have been first received by...