Thomas v. Com.
| Decision Date | 04 June 1935 |
| Citation | 83 S.W.2d 460,259 Ky. 786 |
| Parties | THOMAS et al. v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Graves County.
Coy Thomas, Sanford Thomas, and Curt Thomas were convicted of chicken stealing, and they appeal.
Affirmed.
W. H Hester, of Mayfield, for appellants.
Bailey P. Wootton, Atty. Gen., and Ray L. Murphy, Asst. Atty. Gen for the Commonwealth.
Coy Thomas, Sanford Thomas, and Curt Thomas appeal from a judgment convicting them of chicken stealing and fixing the punishment of each at one year's imprisonment.
The facts are: On March 4, 1934, Mr. and Mrs. W. L. McBee, who live in Graves county, left home for a short visit. Before leaving, Mr. McBee arranged with Sanford Thomas to milk and feed during his absence. The McBees, who owned 114 hens and 5 roosters, returned on March 6th, and discovered that 18 of their chickens were missing. An investigation led to the discovery that Charley Foy, who operated a general store about a mile from the McBee residence, had recently purchased a quantity of chickens from Sanford Thomas, Coy Thomas, and Curt Thomas. Going to the Foy store, Mr. and Mrs. McBee identified as their property 13 of the chickens which Foy had purchased from the Thomases. When carried to the McBee home the chickens went to their usual roosting place. The chickens were all Dominickers, and the McBees were able to identify them by reason of the fact that they had feathers on their legs and feet, and neither Sanford Thomas nor any one else in that community had chickens of that kind. On the other hand Sanford Thomas testified that he himself owned 34 chickens, all of which were Dominickers, except one yellow rooster. He determined to take off about a dozen chickens. While on his way to his father's to get the wagon, he met Coy and Curt, who agreed to help him carry the chickens. Thereupon they put 12 chickens in the three sacks and took them to the Foy store. There were several persons at the store on their arrival, and they made no effort to conceal the chickens. The chickens sold for $7.05. Coy and Curt Thomas testified to the same effect.
The argument that the Thomases would not have carried the chickens to the Foy store and have sold them in the presence of numerous persons, if they had stolen the chickens, was strongly pressed, but in view of the fact that the chickens were positively identified by the McBees, and of the further evidence that neither Sanford Thomas nor any one else in the community owned chickens of the same kind and appearance, it is at once apparent that the evidence was sufficient, not only to take the case to the jury, but to sustain the verdict.
Another contention is that on the question of ownership of the chickens there was a fatal variance between the indictment and the proof.
The indictment charged that the...
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