Tucker v. Commonwealth

• Decision Date: 09 October 1934
• Citation: 75 S.W.2d 220,255 Ky. 635
• Parties: TUCKER et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

75 S.W.2d 220

255 Ky. 635

TUCKER et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

October 9, 1934

Appeal from Circuit Court, Muhlenberg County.

Morton Tucker and Cecil Jarvis were convicted of knowingly receiving stolen property, and they appeal.

Affirmed.

T. O Jones, of Greenville, for appellants.

Bailey P. Wootton, Atty. Gen., and David C. Walls, Asst. Atty. Gen for the Commonwealth.

REES Chief Justice.

Morton Tucker and Cecil Jarvis were convicted of the crime of unlawfully and knowingly receiving stolen property and were sentenced to a term of one year each in the penitentiary.

It is first insisted on this appeal that the trial court erred in overruling their motion for a peremptory instruction on the ground that there was no evidence tending to show that they knew the property found in their possession had been stolen.

The facts are these:

On or about December 12, 1933, Joe Lane broke into a freight car of the Illinois Central Railroad Company while it was located in the railroad yards at Central City and stole a large quantity of cigarettes. A day or two later he met Jarvis and asked him if he wanted to buy some cigarettes. The sale was not consummated at that time, but later Jarvis and Tucker drove in an automobile to Lane's home and agreed to purchase three cases of cigarettes at $9 a case. Each case contained 50 cartons of 10 packages each, or 10,000 cigarettes, and was worth approximately $50. The cigarettes were concealed in a ditch some distance from Lane's home. Lane walked through a woodland to the place where the cigarettes were concealed returned with them, and delivered them to appellants, who sat in the automobile while Lane went to the place where the cigarettes were concealed and returned. They paid Lane $21 but failed to pay the balance due, and a few days later Lane went to Tucker's home and took back the cigarettes for which he had not been paid. Appellants traded most of the cigarettes for merchandise at a store in Central City; the cigarettes being valued at 90 cents a carton by the merchant who received them. When appellants were arrested they admitted purchasing the cigarettes, and delivered to the arresting officers all that remained in their possession. They testified that they did not know the cigarettes had been stolen, and Lane testified that when he sold and delivered the cigarettes to appellants he did not inform them that they had been stolen.

It is argued that there is no evidence tending to show such knowledge on their part, but there are a number of circumstances from which the jury might have reasonably inferred that they knew the cigarettes had been stolen. The evidence shows that appellants lived two or three miles from the home of Lane and that both of them knew Lane. They knew that Lane was not employed and was not engaged in the mercantile business. They knew that Lane did not have the cigarettes in his home, but they saw him walk through a woodland, where he evidently had them concealed, and return with them. They purchased them for approximately one-fifth of their market value, and this in itself should have been enough to arouse their suspicion. In the case of Duke v Commonwealth, 255 Ky. 403, 74 S.W.2d 472, where the circumstances tending to show knowledge on the part of the accused were no stronger than those in the instant case, this court, in approving the trial court's refusal to sustain a motion for a peremptory instruction, said: "The circumstances surrounding the sale to appellant, the very modest price which he gave for the goods, the hour at which the goods were sold, all indicate clearly that he knew the goods had been stolen. Furthermore, appellant's possession of the stolen goods was itself, under the provisions of section 1199 of the Statutes, prima facie...