Stone v. Com.
| Decision Date | 12 June 1970 |
| Citation | 456 S.W.2d 43 |
| Parties | James Oliver STONE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
David Deep, King, Deep, Branaman & Hunt, Henderson, for appellant.
John B. Breckinridge, Atty. Gen., David E. Murrell, Asst. Atty. Gen., Frankfort, for appellee.
Appellant, James Oliver Stone, was indicted by the Henderson County Grand Jury for having feloniously taken a payroll check from the Henderson City Garage. KRS 433.180. He was tried, found guilty and sentenced to two years in the penitentiary. He unsuccessfully moved for a new trial solely on the basis of the discovery of evidence which he contends could not have been discovered with reasonable diligence prior to the trial. On his appeal he asserts only that ground, but we reverse for a different reason.
Stone was an employee of the Henderson City Garage at the time a $131.04 payroll check, dated December 27, 1968, made payable to Roy Churchill disappeared. The evidence showed that Stone had been in the office using a telephone at the desk where the check was kept in an unlocked drawer.
A witness, Alvey Brogan, testified that the check was cashed at his place of business, the Old Kentucky Barbecue, in Evansville, Indiana on January 3, 1969, at 9:00 p.m. At a preliminary hearing in the Henderson Police Court at which Stone had no counsel, Brogan had testified that on the 2nd day of January, 1969, around 9:00 p.m. Stone cashed the check in his place of business. This transcript of evidence was not present on the jury trial and according to counsel for Stone was not known to exist until after the trial. He claims that the discrepancy in the dates used by Brogan would have impeached his testimony and that Stone was entitled to the benefit of that impeachment.
Stone took the position then and at the jury trial that he was not in Evansville on either January 2 or January 3. He admitted that on one occasion long before he had been in the Old Kentucky Barbecue and had talked to Brogan. We consider it unnecessary to review the authorities his counsel cites in support of his argument that he was entitled to a new trial because of the absence of the preliminary hearing record. We base our reversal on other grounds.
The endorsement on the check shows that it was deposited by Old Kentucky Barbecue in an Evansville bank. We discovered from the exhibit that the depository bank's stamp on the back of the check is dated January 2, 1969. We find no indication that this fact was called to the attention of the court below...
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