Turner v. Commonwealth

• Decision Date: 07 June 1921
• Parties: TURNER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

231 S.W. 519

191 Ky. 825

TURNER v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 7, 1921

Appeal from Circuit Court, Fayette County.

Robert Turner was convicted of chicken stealing, and he appeals. Affirmed.

W. P Kimball, R. E. Lee Murphy, and Taylor N. House, all of Lexington, for appellant.

Chas I. Dawson, Atty. Gen., and W. T. Fowler, Asst. Atty. Gen for the Commonwealth.

CLAY J.

Robert Turner was convicted of the offense of chicken stealing, and his punishment fixed at confinement in the penitentiary for a period of two years. He appeals and assigns numerous grounds for a reversal of the judgment.

Briefly stated, the facts are these: Ernest McMeekin is a farmer and lives on Harrodsburg pike in Fayette county. He was the owner of several chickens. About 4 o'clock on the afternoon of December 21, 1920, Turner was on the Harrodsburg pike not far from McMeekin's home, and was walking toward Lexington with a sack on his back. At the same time, Ernest Thompson the night chief of police of the city of Lexington, and one or two others, were in the city automobile en route to Lexington. They saw Turner and recognized him. After running past him, they stopped, and one of the men in the car asked Turner if he wanted to ride to the city. Turner said that he did and got into the machine. They asked him what he had, and he said he had a sack of chickens. When they reached the city limits, Turner said that he lived there and asked them to stop. Thompson said:

"Oh, no, Bob, what do you want to get out here for? You live over on the other side of town. Where did you get those chickens?"

Turner replied that he had bought them. Thompson said, "Oh, no, you didn't," and brought Turner on down to the police station. In the sack were several hens and a Plymouth Rock rooster. They put an advertisement in the paper in regard to the chickens. On seeing the advertisement, McMeekin discovered that several of his chickens were gone and then went to the police station. He was able to identify the rooster because it was a pet rooster and belonged to his brother's little girl, and the other chickens resembled those which he had lost. While he identified the chickens as his, he was doubtful if he could have identified them if the rooster had not been with them. It further appeared that twice before Turner had been convicted and sentenced to the penitentiary for the same offense.

On the other hand, Turner testified that he was out in the country setting steel traps and met a colored fellow by the name of George Cole, who lived in the South Elkhorn neighborhood, and who sold him the chickens and sack for $7.50, or $1.25 apiece. He further claims that a white man was present and witnessed the transaction. Neither Cole nor the white man appeared as a witness, and no effort was made to procure their testimony.

Here, then, we have a case where McMeekin lost certain chickens. Though he was candid enough to admit that he might not have been able to identify the other chickens had it not been for the presence of the rooster, he was certain that the rooster was his, and equally certain that the other chickens were his, in view of the presence of the rooster and of the fact that they corresponded to the chickens which he had lost. On the day on which the chickens disappeared, Turner was in the neighborhood and was seen going from the direction of the McMeekin farm toward Lexington carrying the chickens in a sack. After entering the automobile and reaching the city limits, he pretended that he lived there and wanted to get out, though, as a matter of fact, he lived on the other side of town, some distance away. On being asked what he had in his bag, he said they were chickens and that he had bought them from a man by the name of Cole. Thus, on the one hand there was evidence that he was in the neighborhood where the chickens were stolen and was in possession of the chickens. On the other hand, there was his unconfirmed statement that he had bought the chickens. In our opinion the evidence of his guilt was not only sufficient to take the case to the jury, but to sustain the verdict. It follows that the court did not err in overruling the motion for a peremptory made at the conclusion of the evidence for the commonwealth and afterwards renewed at the conclusion of all the evidence.

Another error relied on was the refusal of the court to sustain the demurrer to the indictment. The indictment set forth two former convictions for the same offense. The demurrer challenged the validity of the Habitual Criminal Act, which provides in substance that every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and if convicted a third time of felony, he shall be confined in the penitentiary during his life. Section 1130, Kentucky Statutes. The point is made that the act violates section 17 of the Constitution, which provides that excessive bail shall not be required, nor excessive fines imposed, nor cruel punishment inflicted. In reply to this contention, it is sufficient to say that the statute has been attacked on several occasions, not only on the ground that it violates section 17 of the Constitution, but on numerous other grounds, and its validity always has been sustained. Boggs v. Commonwealth, 9 Ky. Law Rep. 342, 5 S.W. 307; Herndon v. Com., 105 Ky. 199, 48 S.W. 989, 20 Ky. Law Rep. 1114, 88 Am. St. Rep. 303; Hall v. Com., 106 Ky. 898, 51 S.W. 814, 21 Ky. Law Rep. 520; Chenowith v. Comth., 11 Ky. Law Rep. 562, 12 S.W. 585; White v. Com., 20 Ky. Law Rep. 1942, 50 S.W. 678; Hyser v. Comth., 116 Ky. 418, 76 S.W. 174, 25 Ky. Law Rep. 608; Taylor v. Com., 3 Ky. Law Rep. 783.

Another ground urged for reversal was the refusal of the court to grant the defendant a continuance. In his affidavit filed in support of the motion, the defendant stated that he was old and broken down in health, and that he was not in a condition, physically or mentally, to confer with his counsel or prepare his defense. No other evidence was offered in support of the motion. The commonwealth introduced the county physician and jailer, whose evidence tended to show that the defendant was physically able to stand the...