Wilson v. Com.
| Decision Date | 01 November 1946 |
| Citation | 197 S.W.2d 240,303 Ky. 219 |
| Parties | WILSON v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, McCreary County; J. B. Johnson, Judge.
Dorman Wilson was convicted for feloniously breaking into a dwelling house and stealing a pistol, and he appeals.
Affirmed.
J. C. Bird, of Williamsburg, for appellant.
Eldon S. Dummit, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.
STANLEY Commissioner.
Dorman Wilson appeals from a two year sentence for feloniously breaking into a dwelling house and stealing a pistol. KRS 433.180.
The house of Renfro Lovett in Whitley City was forcibly entered during one evening in February, 1946, while he and his family were absent. A pistol was stolen. Among other circumstances tending to prove the appellant guilty was his possession and pawning of the pistol that night to Jeff Crabtree in Whitley City. The defendant denied the charge, and testified that he had bought the pistol from Orville Thomas, alias 'Wormy.'
It is argued that the court committed error in denying the defendant a retrial on the ground of newly discovered evidence. That is recorded in a number of affidavits reciting specific instances of theft or alleged theft of various articles by Thomas and that he has the reputation of being a thief. In contradiction of the defendant's statement that he had not known these facts at the time of the trial counter-affidavits were filed to the effect that the defendant had known Thomas and his family quite well and had had sufficient information to enable him to have seasonably offered the testimony. Quite naturally, the Commonwealth submits that the testimony would have been incompetent and, therefore, inadmissible. We agree. It is true that a person charged with a crime may establish his innocence by showing that another person committed it without his aid or participation, but he cannot exonerate himself by proving that another had committed similar crimes and had a bad reputation. In Bowman v. Commonwealth, 7 Ky.Op. 656, it was held that the trial court had properly rejected testimony that a third person had impliedly admitted the crime of which the defendant was accused by failing to deny an accusation. A fortiori this newly discovered evidence would have been irrelevant and incompetent, so the court properly denied a new trial.
It is further argued that the defendant was entitled to a concrete instruction submitting his defense, namely, that he had acquired...
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