Wahl v. Com.
| Decision Date | 03 November 1972 |
| Citation | 490 S.W.2d 769 |
| Parties | Dorris WAHL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
David Deep, King, Deep, Branaman, Hunt & Sheffer, J. Ron Daniels, West, Markwell & Bryant, Henderson, for appellant.
John B. Breckinridge, Atty. Gen., John C. Ryan, Sp. Asst. Atty. Gen., Frankfort, B. C. Cubbage, Jr., Commonwealth Atty., Henderson, for appellee.
GARDNER, Commissioner.
Dorris Truman Wahl was convicted the third time of a felony and sentenced to life imprisonment under what is often referred to as the Habitual Criminal Act. KRS 431.190.
In October 1970 the house of Mrs. Goldie Allin was forcibly entered and several items taken. Mrs. Allin was not living in the house at the time. There was nothing at the scene of the crime to indicate who the culprit was. Subsequently one of the items, a small vase, was identified by a friend of Mrs. Allin at a flea market in Evansville, Indiana. This discovery was related to Mrs. Allin who in turn passed the information on to the sheriff's department. The sheriff contacted the antique dealer who reported he had purchased the vase with other items from Dorris Wahl for $40. The antique dealer added that he had purchased other items from Wahl in the past and the ownership of the goods was never questioned by anyone. Wahl never denied having possession of some of the stolen goods nor that he sold them to the antique dealer. He insisted that he purchased the goods at his place of residence from an unknown person, whom he described as 'gypsy-like,' for $50.
Wahl's first assigned error is that he should have been granted a continuance because of the absence of a material witness. According to Wahl, he discovered the day before the trial that Bobby Mattingly was out of the state and that the sheriff could not summon him as a witness. Wahl insisted that Mattingly was a disinterested witness who would establish an alibi for him. The avowal as to what the absent witness would testify is as follows: 'That he, Bobby Mattingly was in the presence of the defendant, Dorris Wahl, on the day in question, October 11, 1970, and spent the day and evening in the presence of said defendant and further did not leave the presence of the said defendant until the morning of October 12, 1970.' It is noted that the avowal, even if true, would not establish an alibi. It merely states that Wahl was with Mattingly during the time of the robbery but doesn't say where Mattingly was at the time. The avowal does not negate the possibility that the two were together at the scene of the crime when it was perpetrated.
In addition, it is pointed out by the Commonwealth that the affidavit for a continuance did not state that due diligence had been exercised to obtain the presence of the witness nor the affiant's belief of the truth of the statements contained in the affidavit, as required by RCr 9.04 which provides:
In view of the fact that the affidavit itself, even if true, does not tend to establish an alibi, and in the absence of an assertion in the affidavit that affiant believed the facts to be true and that due diligence had been employed to have the witness present, we do not believe the court abused its discretion in refusing a continuance. McFarland v. Commonwealth, Ky.,473 S.W.2d 121 (1971).
Wahl's second assigned error...
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Hatfield v. Daugherty
...convictions was admissible regardless of its prejudicial effect. Id. at 449. The Ratliff court specifically referred to Wahl v. Commonwealth, 490 S.W.2d 769 (Ky.1972), in which the Kentucky Supreme Court allowed the introduction of the appellant's five earlier convictions under the state's ......
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Jackson v. Com.
...is found in possession of the accused, such showing makes a submissible case for the jury on a charge of burglary. Wahl v. Commonwealth, Ky., 490 S.W.2d 769 (1972). Because the evidence is sufficient to support a conviction that appellant stole the property which was taken in a break-in, it......
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Osborne v. Com.
...punishment, evidence of those earlier convictions was admissible regardless of their unquestionably prejudicial effect. Wahl v. Commonwealth, Ky., 490 S.W.2d 769 (1972). Ratliff at The Ratliff opinion relied on the holding in Wahl v. Commonwealth, 490 S.W.2d 769 (1972), to reach its conclus......
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Hatfield v. Daugherty
...punishment, evidence of those earlier convictions was admissible regardless of their unquestionably prejudicial effect. Wahl v. Commonwealth, Ky., 490 S.W.2d 769 (1972). See also, R. Lawson, The Kentucky Evidence Law Handbook § 2.20 Comment II (2d ed. We find further support for our conclus......