25 Ky.L.Rptr. 2062
Court of Appeals of Kentucky.
April 13, 1904.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Thomas Jones was convicted of breaking into a dwelling house and taking therefrom two sides of bacon and a ham, and appeals.

The appellant was indicted for feloniously breaking into the dwelling house of J. G. Fusen and taking therefrom two sides of bacon and a ham, by the grand jury of Knox county, and upon his trial before a petit jury was found guilty, and his punishment fixed at two years' confinement in the penitentiary. Appellant testified as a witness in his own behalf, and upon cross-examination the commonwealth's attorney propounded the following question to him: "Did you, on the former trial of this case, when you were convicted of this offense, swear that you met James Bray on the Sunday night that you say you started back home-- the night the meat was said to have been found in your crib?" The defendant, by counsel, objected to the form of the question, which the court overruled, and required him to answer. He thereupon answered as follows: "I did not swear on the former trial about having met James Bray on that night, because nothing was asked me about having met him." Bray was present as a witness on the former trial, but did not testify. After the examination was completed, the trial court admonished the jury that the form of the commonwealth's attorney's question was improper, and that the jury should not consider the fact that the defendant had been theretofore convicted, nor permit it to have any weight with them in the decision of the case. It is insisted for the appellant that the admonition to the jury by the trial court did not cure its error in failing to sustain the defendant's objection to the form of the question, and cite the case of Tully v. Commonwealth, 13 Bush, 142. In that case the trial court permitted the entire record of a previous trial to be read to the jury, and that case certainly presented a very different question from the one at bar. While it was clearly improper for the commonwealth's attorney in framing his question to have referred to the fact of appellant's conviction upon a former trial, we cannot believe, in the face of the admonition of the court, that this slip could have been prejudicial to the defendant. "We have no right to presume that appellant was prejudiced by reading that indictment, for to do so requires the assumption that the jury disregarded their oath and duty to try the case according to the evidence." We are of the opinion that this error does not afford ground for reversal.

A reversal is asked for the additional reason that the testimony of the commonwealth was not sufficient to warrant a verdict of guilty. It was very clearly shown by the testimony that the dwelling of J. G. Fusen was broken into on the night of January 12, 1903, and two sides of bacon and a ham taken therefrom, while the family were absent; and that Fusen went to the house of appellant, and informed him that he intended on the next morning to have every man's premises on the creek searched for the missing property; and that on that night he and John Jones, a brother-in-law of the defendant, went to his premises, saw him enter his stable, heard him throwing corn up against the walls of the crib, saw him emerge from the stable carrying a box on his shoulder, which he set down in the field and began to open; that Fusen called out to the defendant, and fired his pistol; that defendant thereupon took to his heels, and an examination of the box disclosed the missing meat. They also went to the stable, and discovered a hole in the pile of corn from which the box had been taken. Whilst the defendant introduced very strong evidence conducing to prove an alibi, we think there was sufficient evidence on which to found the verdict of the jury. Upon the whole case we perceive no error prejudicial to the substantial rights of the defendant.

Judgment affirmed.

Ky.App. 1904.


79 S.W. 1183, 25 Ky.L.Rptr. 2062


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