Smith v. Com.

• Decision Date: 15 January 1954
• Citation: 263 S.W.2d 929
• Parties: SMITH et al. v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 929

263 S.W.2d 929

SMITH et al. v. COMMONWEALTH.

Court of Appeals of Kentucky.

Jan. 15, 1954.

Jasper H. Preece, Inez, for appellants.

J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., W. D. Sparks, Commonwealth's Atty., Louisa, for appellee.

WADDILL, Commissioner.

Appellants were convicted of the crime of grand larceny and sentenced to one year in prison. They seek a reversal of the judgment, urging that (1) the court erred in failing to sustain the demurrer to the indictment; and (2) the verdict was flagrantly against the evidence.

In support of their first contention appellants claim that the indictment was fatally defective in failing to state the property was taken 'against the will, or without the consent of the owner.' There is no merit in this contention for the reason that the indictment alleges that appellants '* * * did with force and arms, unlawfully and feloniously, take, steal and carry away copper wire * * *.' The charge that appellants forcibly took the property in question from the owner sufficiently describes the trespass. Therefore, the indictment clearly states that element of the crime of larceny.

Appellants next contend that the verdict was flagrantly against the evidence. A disposition of this contention requires a statement of the substance of the testimony heard at the trial.

The evidence upon which the appellants were convicted was largely circumstantial. No witness testified to having seen the appellants steal or carry away any wire from the Cinderella Mine. Nor does any witness testify that appellants were seen with any wire in their possession. However, the Commonwealth does rely upon circumstantial evidence and the testimony of Colbert Crum concerning a conversation he had with appellant Bryant in the presence of the other appellants, claimed by the Commonwealth to be incriminating, to sustain the verdict.

During the years of 1951-52 the Cinderella Coal Company operated a coal mine in a remote section of Martin County near the West Virginia state border. In January, 1952, a large quantity of copper wire was stolen from its mine. Upon investigation, certain officers of the coal company found the wire secreted in a field near the home of Ance Marcum. The Marcum residence was the only dwelling located in the neighborhood of the mine.

The only testimony which in any way might circumstantially connect appellants with the theft was given by the witnesses, Ance Marcum and his wife, Beulah, John Chaffins and Tom Johnson. Marcum testified that he was informed of the theft vy Tom Johnson, a deputy sheriff, and was shown the trail and marks on the ground along which the wire had been dragged across his yard and over a hill. Marcum stated he was present when the wire was found about a quarter of a mile below his residence. Marcum further stated that on the following day he met the appellants on the road leading to the mine near the place where the wire was hidden, and that later he discovered that the wire had been moved to a place behind his garden and cut into six foot lengths.

The testimony of officers, Chaffins and Johnson, was to the effect that after they had discovered the place where the wire was concealed, they stationed themselves in a car nearby, and at about 11:30 o'clock that night, they saw a truck drive by which had the...