Tomlinson v. Commonwealth
| Citation | 261 Ky. 186 |
| Parties | Tomlinson v. Commonwealth. |
| Decision Date | 07 November 1935 |
| Court | United States State Supreme Court — District of Kentucky |
1. Criminal Law. — Statute making punishment for assault with offensive weapon with intent to rob 21 years' confinement in penitentiary or for life, or by death, in discretion of jury, held not unconstitutional as inflicting cruel punishment (Ky. Stats. Supp. 1934, sec. 1160).
2. Robbery. — Failure of commonwealth to prove taking of sum alleged in indictment charging defendant with aiding and abetting an assault with an offensive weapon with intent to rob held not error, since gist of offense was the aiding and abetting of an assault with intent to rob (Ky. Stats. Supp. 1934, sec. 1160).
3. Robbery. — That indictment for aiding and abetting an assault with an offensive weapon with intent to rob charged a robbing of about $3 and proof at trial consisted merely of victim's statement that attackers had "relieved me of my money" held not to constitute a variance between indictment and proof (Ky. Stats. Supp. 1934, sec. 1160).
4. Infants. — In prosecution for aiding and abetting an assault with an offensive weapon with intent to rob, testimony of witnesses that defendant had stated that he was 17 years of age held admissible as substantive evidence and for purpose of contradiction on question whether defendant was over 16 years of age at time of commission of crime so as to confer jurisdiction upon circuit court (Ky. Stats. Supp. 1934, sec. 1160).
5. Infants. — In prosecution for aiding and abetting an assault with an offensive weapon with intent to rob, whether defendant was over 16 years of age at time crime was committed so as to confer jurisdiction upon circuit court held for jury (Ky. Stats. Supp. 1934, sec. 1160).
6. Criminal Law. — In prosecution for aiding and abetting an assault with an offensive weapon with intent to rob, failure to give instruction on effect of drunkenness held not error, where defendant's defense was an alibi, and testimony that he was drunk related to following evening (Ky. Stats. Supp. 1934, sec. 1160).
7. Assault and Battery. — In prosecution for aiding and abetting an assault with offensive weapon with intent to rob, failure to instruct on lesser offense of assault and battery held not error, where there was no evidence of any previous hostility or any thing to indicate that assault was result of anger (Ky. Stats. Supp. 1934, sec. 1160).
Appeal from Boyle Circuit Court.
CHESTER D. SILVERS for appellant.
BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE and RAY L. MURPHY, Assistant Attorneys General, for appellee.
Affirming.
John Tomlinson appeals from a judgment convicting him of aiding and abetting an assault upon another with an offensive weapon with the intent to rob, and fixing his punishment at 21 years' imprisonment.
According to the prosecuting witness, Grandison Glasscock, the crime was committed in the following circumstances: He was in the employ of the C.N.O. & T.P. Railway Company as a telegrapher, and his place of business was at the D.V. Tower at the Perryville crossing in the city of Danville. About 11:10 p.m. December 27, 1934, he left the tower, and as he crossed over the intersection of Fifth street with Main street in front of the Texaco Oil Station an automobile with three men in it drove up to the curb and asked the direction to Lexington. He told them that they were on the Lexington road, provided they wanted to go through Harrodsburg. They replied that they did not want to go that way, but wanted to go through Camp Nelson. He told them to go back two blocks and follow highway No. 34 to the intersection with highway No. 27. At that point the two men sitting to the right of the driver got out with pistols and told him to get in. He started to break away from them, but one of them stuck his gun in his ribs and told him if he did not want to get killed to do what they told him to do, and do it quickly. They folded the seat, placed a gun in his side, and forced him into the rear seat of the automobile. They then took him about a mile down the Gentry lane, off the Harrodsburg road, turned the automobile around, headed toward the highway, and put him on the bank against a walnut tree. One of the men held a gun to his back while the other one went through his pockets "and relieved me of my money." One of the men put a pistol between his shoulders and told him to walk, and if he turned back or reported they would kill him. He walked on until the automobile started and got over the hill, and he then turned and walked back to Danville. Afterward he went to Lexington on the invitation of the police and identified appellant as the driver of the car. Also at the trial he looked at appellant and said that he was the man who was driving the car the night he was robbed, and the man that asked the direction and did the talking when the car drove up to the curb. On cross-examination he stated that the driver of the car had on a gray cap and a gray suit of clothes, and never had any glasses on. He further stated that the driver never got out of the car, and did not open the door to the car, and that he did no more talking after the witness got into the car. According to R.K. Crain, the jailer, appellant did not have on glasses when first committed to his care, but put them on later when his mothe...
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