Winn v. Com.
| Citation | 303 S.W.2d 275 |
| Parties | William Clifton WINN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Decision Date | 21 June 1957 |
| Court | United States State Supreme Court (Kentucky) |
S. Rush Nicholson, Robert W. Zollinger, Louisville, for appellant.
Jo M. Ferguson, Atty, Gen., Edward L. Fossett, Asst. Atty. Gen., for appellee.
Appellant, William Clifton Winn, was convicted under the habitual criminal statute KRS 431.190 and was given a life sentence. He assigns five grounds for reversal: 1. The corpus delicti was not proven; 2. incompetent evidence was introduced against him; 3. he was denied the right of cross-examination of a Commonwealth witness; 4. a previous suspended sentence cannot be considered as a prior conviction; 5. presenting proof of former convictions denied his right to a trial by an impartial jury.
The indictment charged appellant with grand larceny of 104 cases of whiskey worth $3,950 from John P. Dant Distilling Company, hereinafter referred to as the Company, and further charged him with two previous felony convictions, the second having been committed after his conviction of the first felony and the instant crime as having been committed after his second felony conviction. As appellant contends the proof does not show the corpus delicti, or that the crime was committed, and as the proof is circumstantial it necessarily follows that we will have to relate the evidence in some detail.
Phillip Dant, vice president and general manager of the Company, closed its warehouse in Louisville at 4 P. M., on August 12, 1955, and was the last man out of the building. There was neither a watchman nor a burglar alarm to protect the warehouse, which was not opened for business on Saturday or Sunday. When Mr. Dant came to the warehouse Monday morning, August 15, he found evidence which caused him to suspect a break-in. He and the foreman checked the building and discovered the double-door in the basement had been opened and upon an inventory check 104 cases of whiskey, worth between $3,900 and $4,000 at wholesale, were found to be missing. Part of this whiskey had a brand name known as 'Great Seal' and the other was known as '21 Brand Club Special,' the latter being manufactured for a New York customer and not sold in Kentucky or Indiana. The Company had the serial numbers of all cases stolen.
Raymond White became acquainted with Winn while both were in prison. White testified Winn discussed breaking in this warehouse with him, Gene Carroll and a man named Gus, and Winn took White by it and showed him a small lock on the door. The whiskey was to be hauled away in a New Chevrolet dump truck. White drove by the warehouse, did not like the looks of it and left the truck parked in the street. He saw Winn two days later and told Winn he did not carry out their plans because the police had picked him up.
Ansel Jackson operated a restaurant in High Splint, Harlan County, and on August 14, at his place of business saw Winn and Doc Nance; the latter wanted to sell Jackson some whiskey and Jackson bought 20 cases of '21 Brand Club Special' for which he gave Nance $50 cash and a $615 check which Nance was to hold until Jackson got the rest of the money. A few weeks later Jackson saw Winn, who said he had the check and for Jackson not to pay Nance any more on it, but to pay him (Winn).
Pat Morgan, a neighbor of Winn, identified the truck in the picture introduced in evidence as the one he had sold Winn Saturday before Decoration Day, 1955, but to which Winn had never gotten legal title. Jackson identified this truck from the picture introduced into evidence as the one containing the whiskey when Winn and Nance came to his restaurant in High Splint. After Winn got into this trouble he told Morgan to take the truck as he (Winn) 'would not be needing it.'
John Gutermuth, a detective in the Louisville Police Department, went to High Splint in August 1955, with Sheriff Didlock of Indiana, Ernest East and two others and recovered 22 cases of the stolen whiskey from Nance's home and 12 cases of it from Jackson. The whiskey was identified by the serial numbers on the cases as a part of the stolen liquor.
Winn was arrested in Indiana and the officers noticed his truck going to New Salisbury. They left Winn in Corydon, Indiana, and returned to New Salisbury and found East asleep in the rear of the truck. The officers found 3 fifths of 'Great Seal' whiskey under the rear steps of the restaurant owned by Winn's brother before they arrested Winn. The manager of the Royal Hotel in New Albany testified that on August 22, 1955, Winn had occupied room #25 in the hotel and after he had checked out, some whiskey bottles were in this room bearing the label '21 Brand Club Special.'
Appellant argues as there is no direct testimony that the Company's warehouse was broken into and the whiskey stolen therefrom, the corpus delicti was not proven. True, there was no direct evidence of entering the warehouse and the larceny of this whiskey, yet it is difficult to find stronger circumstantial evidence of the commission of a crime than as shown by this record. The corpus delicti may be established by circumstantial evidence. Witt v. Com., 305 Ky. 31, 202 S.W.2d 612. And here the circumstantial evidence forms a complete chain and unerringly points to the guilt of accused, the test laid down in Fyffe v. Com., 301 Ky. 165, 190 S.W.2d 674. It is argued that possession of stolen property must be personal and involve a conscious possession by accused to warrant an inference of guilt, citing Little v. Com., Ky., 261 S.W.2d 620. This is the rule and as said in the Little opinion, the burden is on the one found in the possession of the stolen property to satisfy the jury as to how he obtained it. This, Winn was unable to do, since the jury convicted him. It is argued appellant was not in the exclusive possession of this whiskey and therefore his joint possession of it with another is not sufficient to form the basis of his guilt. However, exclusive possession does not mean it cannot be joint. 32 Am.Jur. 'Larceny', § 141, p. 1054.
The incompetent evidence of which appellant complains is that given by detective Gutermuth, in that he was permitted to give hearsay testimony as to what East told him as to Winn's connection with the liquor. Ordinarily...
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