Short v. Com.

• Citation: 76 S.W. 11
• Parties: SHORT v. COMMONWEALTH.
• Decision Date: 23 September 1903
• Court: Kentucky Court of Appeals

76 S.W. 11

SHORT v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 23, 1903

Appeal from Circuit Court, Marion County.

"Not to be officially reported."

Jim Short was convicted of housebreaking, and appeals. Affirmed.

Lev. Russell, for appellant.

Clifton J. Pratt and M. R. Todd, for the Commonwealth.

SETTLE J.

Under an indictment for housebreaking the appellant was convicted in the Marion circuit court, and his punishment fixed at a year's confinement in the penitentiary. A reversal is asked by his counsel because of the refusal of the trial judge to peremptorily instruct the jury to find him not guilty. As such an instruction would have been authorized only upon the ground that there was no evidence upon which to base a verdict of conviction, it will be necessary to consider the evidence, in order that we may determine whether or not the peremptory instruction should have been given. It appears from the evidence introduced by the commonwealth that one C. Schwaner is the proprietor of a shoeshop in the city of Lebanon, which was, on the night of the 27th or 28th of December, 1902, feloniously broken into by some person or persons, who took therefrom three pairs of shoes. Schwaner promptly reported the injury to his shop and the loss of his shoes to J. A. Thompson, chief of police, who, in March following, ascertained from some colored people, found in possession of a pair of the stolen shoes, that they had bought them of a negro known as Napoleon Rollins. He then saw Rollins, and found a pair of the missing shoes on his feet. Rollins admitted that he had sold two pairs of shoes for appellant, and that he had retained those on his feet, which he claimed to have gotten from appellant, to pay him for his service in selling the others. Apparently without suggestion from the officer Rollins made the necessary affidavit, and procured a warrant for the immediate arrest of the appellant charging him with the crime of feloniously breaking into Schwaner's shop and stealing the shoes. Upon the trial the three pairs of shoes found by the officer were produced in court, and fully identified by Schwaner and Osborne as the same stolen from the former's shop. Rollins was also introduced by the commonwealth, and testified that in December, 1902, he and the appellant were in the employ of the Louisville & Nashville Railroad Company at Lebanon, and boarded with George Miles, near the section house; that he and appellant went to bed together at the house of Miles, and soon thereafter some one called appellant, who got up and went downstairs, and, after remaining a short time, returned to the room where they slept, and again went to bed; that appellant got the shoes downstairs, but there was no light in the room where they slept, and Rollins did not see the shoes until the next morning; that appellant afterwards went to Louisville, and later wrote Rollins from that place requesting him to sell the shoes; and that two pairs of the shoes were sold by Rollins, and the third pair retained for his use, and to compensate him for selling the others. The letter from appellant to Rollins requesting him to sell the shoes was introduced in evidence, and proved by Rollins to be in the handwriting of appellant. On cross-examination Rollins further testified that appellant, upon his return to the room where they slept, remained therein all night; that he remained downstairs about 10 or 15 minutes when called out and that it was three-fourths of a mile from their boarding house to Schwaner's shop. Upon proof of the facts thus far stated, the commonwealth rested its case, and counsel for appellant then asked for the peremptory instruction refused by the court. We think the lower court properly refused the peremptory instruction, as the evidence introduced by the commonwealth showed that the shop of Schwaner had been feloniously broken into; that the shoes were at the time stolen...