Smith v. Commonwealth

• Decision Date: 24 September 1891
• Citation: 17 S.W. 182
• Parties: Smith v. Commonwealth.
• Court: Kentucky Court of Appeals

17 S.W. 182

Smith v. Commonwealth.

Court of Appeals of Kentucky.

September 24, 1891

Appeal from circuit court, Breathitt county.

"Not to be officially reported."

William Smith was convicted of robbery, and appeals. Reversed.

Pryor J.

The appellant asks for a reversal of the judgment of conviction because the court refused to instruct the jury to find for him. Section 241 of the Criminal Code provides: "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof." By section 242, a verdict of acquittal should go in such a case, in the absence of this corroborating testimony. In this case the testimony of the two accomplices establish the guilt of the defendant beyond any doubt. They detail the manner of and the circumstances connected with, the entrance into the house of Roberts, and taking from it his money; but we fail to find any fact corroborating their statements tending to connect the accused with the commission of the offense. The only witness whose testimony connects the accused with the two accomplices in any way is Jones, who says, about the time or before the money was taken, he saw the defendant, Smith going towards Obe Roberts' house one evening. Roberts is the man who had the money stolen from him. He kept a little store, which the proof shows these parties often visited, as well as others. Smith, the defendant, lived in the neighborhood, and there could have been nothing unusual in seeing him on his way to the house of Roberts. It is not shown that he knew Roberts had any money, or that he kept it at the place from which it appears to have been taken, and in fact nothing appears in the form of testimony tending to connect him with the guilt of the other parties, or rather with the commission of the offense. It is not necessary that his guilt should be established by this corroborating proof but circumstances of a character tending to connect him with the offense are a sufficient corroboration of the testimony of the accomplices, to the effect that the party charged aided him in the commission of the felony, or was a party to it. The money or property stolen, or a part of it, found in his possession, or his being seen with the parties at the time and...