Utterback v. Commonwealth

• Decision Date: 07 January 1921
• Citation: Utterback v. Commonwealth, 190 Ky. 138, 226 S.W. 1065 (Ky. Ct. App. 1921)
• Parties: UTTERBACK v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

226 S.W. 1065

190 Ky. 138

UTTERBACK v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 7, 1921

Appeal from Circuit Court, Mason County.

Jesse Utterback was convicted of grand larceny, and he appeals. Affirmed.

A. D Cole, of Maysville, for appellant.

Chas I. Dawson, Atty. Gen., C. W. Logan, Asst. Atty. Gen., and B S. Grannis, Commonwealth's Atty., of Flemingsburg, for the Commonwealth.

HURT C.J.

The appellant, Jesse Utterback, was jointly indicted with George Hambric and Mat Washington for the crime of grand larceny committed as alleged by taking, stealing, and carrying away from the possession of Chas. Gamby $25 in currency, which was the personal property of Gamby, and with the intent to convert it to their own use and benefit, and to permanently deprive the owner of the use and benefit of it. The indictment, while it alleged that one or the other of the parties indicted actually did the stealing, and which one of them so did was to the grand jurors unknown, charged that one or the other of them did the actual stealing, and the other two were present at the time and place, and aided and abetted the one who actually took the money from Gamby. The appellant, Utterback, having requested a separate trial, the commonwealth's attorney elected to first proceed against him. The trial resulted in a verdict of the jury finding him guilty of the crime charged in the indictment and fixing his punishment at confinement in the penitentiary for two years, and a judgment was rendered accordingly. The appellant's motion for a new trial having been overruled, he has appealed to this court, and urges as grounds for a reversal of the judgment that the court erred to his prejudice: First, in admitting incompetent evidence against him; and, second, in denying a motion for a peremptory instruction in his behalf; and, third, in denying him a new trial upon the ground that the evidence was insufficient to support the verdict.

The grounds upon which the reversal is sought make it necessary to consider the evidence heard upon the trial, which, in substance, proved the following facts and circumstances Appellant, whose home was at Lawrenceburg, Ky. for some reason not explained, was in attendance at the fair held near Germantown, in Mason county. There he became an associate of Hambric, whose home was in Cincinnati, Ohio, and of Washington, whose home was in West Virginia. Appellant and his two associates were seen together upon the fair grounds during at least two days of the fair. Charles Gamby, the victim of the larceny, was a colored man, who lived in the neighborhood of Germantown, and who was in attendance at the fair, and who had in his rear pants pocket a pocketbook which contained a $10 bill and three $5 bills. The flap of the pocket was buttoned, but Gamby seems to have been fearful of the loss of his money at the hands of pickpockets, and for that reason frequently felt of his pocket to ascertain if he yet had his money. In the afternoon of Thursday, while a show of farmer's teams was being exhibited, Gamby was standing against the railing around the amphitheater of the fair and viewing the show then being put on. The appellant, Utterback, was leaning with his arm upon Gamby's shoulder and making inquiries of him in regard to the show and the actions of the exhibitors. About two feet in the rear of Gamby sat Hambric, and nearby was Washington. In a short time thereafter Gamby discovered that his pocketbook and money were gone, and he immediately set out to search for the appellant and his associates, whom he was informed had gone out of the fair grounds in the direction of Germantown, which was about one mile away. He went to Germantown on the hunt for them, but, not finding them, returned to the fair grounds, where he met with Hambric, and immediately charged him with having purloined his money. Hambric denied any knowledge of it, but he and appellant and Washington immediately and hurriedly went out of the fair grounds and secured seats in an automobile for the purpose and which took them to Maysville. A few minutes after Gamby discovered his loss, Hambric and the appellant were seen, about 100 yards from the fair grounds, engaged in handling paper money, and within a few feet of where they were seen, in a short time thereafter, Gamby's empty pocketbook was found, lying beside the road. The pocketbook was identified as the property of Gamby by a ticket in it upon which Gamby's name was written, and besides Gamby testified that it was the pocketbook which he had in his pocket, and which was taken along with his money. He made complaint to the marshal of the fair, who immediately communicated with the chief of police at Maysville, and who, upon the arrival at that place of the appellant and his two associates, put them under arrest. They denied any knowledge of each other, and also denied having the custody of any money. A cursory search by the marshal developed the fact that Washington had $3, while Hambric had 41 cents, and the...