Shuttles v. Com.

Decision Date11 January 1921
Citation190 Ky. 176,227 S.W. 154
PartiesSHUTTLES v. COMMONWEALTH.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Boyle County.

Clyde Shuttles was convicted of knowingly receiving stolen goods and he appeals. Affirmed.

John S Owsley, of Stanford, and J. W. Harlan, Chenault Huguely, and C. C. Bagby, all of Danville, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen., for the Commonwealth.

SAMPSON J.

Appellant, Shuttles, who was convicted in the Boyle circuit court of the crime of knowingly receiving stolen goods and his punishment fixed at five years' confinement in the penitentiary, appeals to this court, seeking a reversal of the judgment upon the grounds: (1) Variance between the averments in the indictment and the evidence; (2) the indictment was insufficient in several particulars; (3) the instructions of the court to the jury were erroneous.

The indictment accuses Shuttles of feloniously receiving a large number of cartons of cigarettes, stolen from the possession of the Southern Railway Company or the Cincinnati, New Orleans & Texas Pacific Railway Company, common carriers, in February, 1920. At that time the railroads were under the control of the Director General of Railroads of the United States, and it is argued in brief of counsel for appellant that, since the railroads were in the possession and under the control of the Director General, the goods, if stolen, were not so taken from the Southern Railway Company or the Cincinnati, New Orleans & Texas Pacific Railway Company, as averred in the indictment, and as the evidence tends to show, the Southern Railway Company, although in the possession and under the control of the Director General, did not lose its entity or identity, and it was possible for the theft to have been committed by taking the property from that corporation, even though it was under the control of the Director General. The same is true of the Cincinnati, New Orleans & Texas Pacific Railway Company. Aside from this there is no merit in this contention, for we have held in more than one case that the owner of goods need not be named in an indictment, under section 1199, and further that, if named, a variance is immaterial if the indictment specifically describes the property stolen and which it charges the defendant with receiving, knowing the same to have been stolen. Commonwealth v. McGarvey, 158 Ky. 570, 165 S.W. 973; Newton v. Commonwealth, 158 Ky. 4, 164 S.W. 108.

The second objection to the indictment is based upon its failure to allege that Shuttles received said goods with the intention of permanently depriving the owner of the use thereof. Such an averment is wholly unnecessary in an indictment for this crime, where it avers that the receiving of the stolen goods was done unlawfully, willfully, and feloniously, as in this case. Such an averment would be necessary in an indictment for larceny, but the gravamen of this crime is knowingly and willfully receiving goods known by the receiver to have been stolen, all of which must be with a felonious intent. When one knowingly receives stolen goods, he is guilty of the offense denounced by section 1199, if he does so feloniously. It is not, therefore, necessary for the indictment to allege that the receiver of the stolen goods acted with a purpose to permanently or at all deprive the owner of the goods.

Appellant next insists that the court should have directed the jury to find and return a verdict finding him not guilty, because the material allegations of the indictment were not sustained by the proof. The gist of this contention is that the evidence of McKenzie, an accomplice who testified for the commonwealth, was not corroborated in many particulars, and being unsupported, was insufficient to warrant the court in submitting the case to the jury. With this contention as to lack of corroboration we do not agree. The evidence shows that the cigarettes which were stolen from the railway company at Danville, Ky. were packed in paper cartons at Winston-Salem, N. C., and there loaded in a certain Baltimore & Ohio car and consigned to Kansas City, Mo.; that the cartons were each marked by the shipping clerk in such way as to be identified. Before the car left Winston-Salem, N. C., it was sealed both by the railway company and the shipper of the cigarettes. When it arrived at Danville, Ky. the seals were unbroken, but within a few hours after its arrival at Danville, and before it left next morning, the seals were broken, and it was again sealed by the railway company before leaving Danville. On reaching its destination at Kansas City the car was examined and found to be sealed, but when opened a number of cartons of cigarettes were missing, thus establishing...

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12 cases
  • State v. Salle, 30830.
    • United States
    • Washington Supreme Court
    • July 21, 1949
    ... ... 890; Wertheimer v. State, 201 ... Ind. 572, 169 N.E. 40, 68 A.L.R. 178; State v ... Minnick, 113 Kan. 385, 214 P. 111; Shuttles v ... Commonwealth, 190 Ky. 176, 227 S.W. 154; ... Commonwealth v. Grossman, 261 Mass. 68, 158 N.E ... 338; State v. Fink, ... ...
  • Commonwealth v. Shouse
    • United States
    • Kentucky Court of Appeals
    • November 26, 1929
    ...the commission of the offense. Frazier v. Com., 190 Ky. 196, 226 S.W. 1069; Gordon v. Com., 190 Ky. 172, 227 S.W. 144; Shuttles v. Com., 190 Ky. 176, 227 S.W. 154; Harper v. Com., 211 Ky. 346, 277 S.W. Goodin v. Com., 212 Ky. 561, 279 S.W. 984; Harvey v. Com., 205 Ky. 356, 265 S.W. 833. Sec......
  • Gossett v. Com.
    • United States
    • Kentucky Court of Appeals
    • December 13, 1940
    ... ... the Newton case, supra, and concluded: "To the extent ... that the opinion in the Cohan case, supra, is in conflict ... with these opinions, it is overruled." The rule in the ... Newton case was followed in Com. v. McGarvey, 158 ... Ky. 570, 165 S.W. 973, and Shuttles v. Com., 190 Ky ... 176, 227 S.W. 154, and with citations from other ... jurisdictions is stated in 53 C.J. 517-538 ...          The ... appellant operated a restaurant in Somerset, and another ... place of business on the highway a short distance to the So ... He was at the ... ...
  • Niece v. Com.
    • United States
    • Kentucky Court of Appeals
    • June 4, 1948
    ... ... to be proved, and stating their names in the indictment is ... unnecessary. Decker v. Commonwealth, 303 Ky. 511, ... 198 S.W.2d 212. If named in the indictment, any variance is ... immaterial if the property is specifically described and ... identified. Shuttles v. Commonwealth, 190 Ky. 176, ... 227 S.W. 154. Circumstantial evidence may be sufficient to ... prove that the property had been stolen from someone and that ... it had been received or taken into possession by the ... defendant knowing that fact. Blusinsky v ... Commonwealth, 284 Ky. 395, ... ...
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