Alexander v. Commonwealth

463 S.W.2d 334, 1971 Ky. LEXIS 588
CourtCourt of Appeals of Kentucky
DecidedFebruary 12, 1971
StatusPublished
Cited by7 cases

This text of 463 S.W.2d 334 (Alexander v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Commonwealth, 463 S.W.2d 334, 1971 Ky. LEXIS 588 (Ky. Ct. App. 1971).

Opinion

PALMORE, Judge.

The appellant, M. N. Alexander, was found guilty of knowingly receiving stolen property and sentenced to two years in the penitentiary. KRS 433.290, 433.220. In this appeal he claims prejudicial error by the trial court in (1) permitting part of a tape recording of certain testimony from a previous trial to be read at the last trial and (2) overruling his motion to discharge the jury because of improper questions propounded by the attorney for the Commonwealth. We find no error in either respect.

The property Alexander is alleged to have received consisted of a set of Mercury dimes stolen from the home of Mrs. M. M. Livingston in April of 1967. Mrs. Livingston saw the collection on display at Paducah in November of 1968, and it was traced to Alexander, resulting in the in[336]*336dictment. Alexander’s defense was that the dimes so discovered had been collected by him over a period of several years and were not the ones stolen from the Livingston home. The first trial resulted in a hung jury.

Mrs. Livingston’s testimony identifying this particular collection of coins was, of course, vital.1 Some of the particular coins were more rare and easier to identify than others. One of these was what is known as a 1916D, connoting that it was minted at Denver in 1916. Mrs. Livingston was able to recognize it by a slight scratch on one side running downward from the letter “Y” in “LIBERTY”. When Alexander took the stand in his own defense and counsel offered him the plaque of coins he replied to the effect that he would like to identify some of the coins from memory, without looking at the plaque (explaining later that although he had seen the plaque at the first trial he had not had a close enough look to inspect any of the coins individually for characteristic markings). He then proceeded to describe the 1916D dime as it had been theretofore described by Mrs. Livingston, but with one additional feature — that his dime also had a center punch mark on the rim under the “9”. We continue with his testimony as follows:

Q. “It has a what?”
A. “It has a center punch and it has been hit. I didn’t look at the plaque and if it is still there, the coin is mine.”
Q. “You heard all these experts testify this morning, didn’t you ?”
A. “Yes, sir, I did.”
Q. “Did you hear any of them say anything about a punch hole on that?”
A. “No, sir.”
Q. “Is there one there on it?”
A. “If one is on it, that’s my dime.”
Q. “If that’s your dime, there is a punch—
A. “Although there can be other dimes with center punches. I am not saying there can’t be, I am not saying that at all and I am not trying to describe the dime, but if that one has a center punch—
Q. “All right, but you had a dime with a center punch under there?”
A. “Yes, sir.”
Q. “Show the jury and make a little round mark where that was.”
A. “It would be right under — on this rim (indicating). This rim would be distorted, it’s right down on the rim, right under the nine.”
Q. “Now you heard the expert testify and look at this and examine it carefully, and you heard Mrs. Livingston talk about it. Did you hear her say anything about any center punch on there?”
A. “I didn’t hear anyone say anything about it.”
Q. “Is there one there ?”
A. “There is one there.”
Q. “Come over here and look at this plaque of dimes and see if you can find it.”
A. (Witness goes to look at plague.) “Yes, sir, I see it. Very distinct. See it right there?”
MR. GRACE: (Looks at plaque.) “I can see it. I’ll ask the gentleman sitting beside you (looking at Commonwealth Attorney) would he please come over here and will he disagree or agree it is, for me?”
MR. JONES: “You are probably right. Go ahead and finish examining him.”
[337]*337MR. SCHROEDER: “I saw it in the last trial. It was brought out in the last trial.” [Schroeder was an expert witness for the Commonwealth.]
MR. GRACE: “You didn’t say anything about it today though, did you?”
MR. SCHROEDER: “No, I forgot it, but it was drawn on the board in the last trial.”
MR. GRACE: “Well, they didn’t draw it on the board today.”

and on cross-examination:

Q. “Well, is there different grades in circulation ?”
A. “Some are very, very — since I have been looking at this here in Court and trying to grade this through here and looking at the scratch marks and identifying it and looking at it, they missed the one on the rim.”
Q. “Beg pardon ?”
A. “They missed the marking on the rim because they didn’t know it was there, see.”
Q. “Who missed the marking on the rim?”
A. “Whoever has been looking at these things.”
Q. “You mean, until today, you have never heard anything about that little marking on that rim?”
A. “Not a center punch marking on the rim, and that’s what this is.”
Q. “Beg pardon ?”
A. “Not a center punch marking on the rim, and that’s what this is.”
Q. “You have never heard about a marking on the rim of the 1916D?”
A. “I don’t recall it, no, sir.”
Q. “You have never heard of it in this courtroom before?”
A. “I don’t recall anybody saying anything about a marking on the nine, on the 1916D, has a center punch marking. I just don’t recall it.”
* * * * * *
Q. “I am going to ask you, Alexander, when you were here — have you ever heard testimony in this courtroom about the mark on that dime before today ?”
A. “Yes, I heard testimony about the mark on the dime that—
Q. “I am talking about the mark on the rim?”
A. “Not on the T6D. I don’t recall it at all.”
Q. “Well, do you or don’t you — have you heard it, or you don’t remember?”
A. “I don’t remember it.”
Q. “You don’t remember, all right. You can’t say you have and you can’t say you haven’t, is that right?”
A. “I can say I don’t remember of ever hearing it.”

Had it been true that Alexander had not theretofore examined the coins, and that Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bussey v. Commonwealth
797 S.W.2d 483 (Kentucky Supreme Court, 1990)
Adkins v. Commonwealth
647 S.W.2d 502 (Court of Appeals of Kentucky, 1982)
Lowery v. Commonwealth
566 S.W.2d 750 (Kentucky Supreme Court, 1978)
Bowler v. Commonwealth
558 S.W.2d 169 (Kentucky Supreme Court, 1977)
Geary v. Commonwealth
503 S.W.2d 505 (Court of Appeals of Kentucky, 1972)
Greenville v. Commonwealth
467 S.W.2d 765 (Court of Appeals of Kentucky, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
463 S.W.2d 334, 1971 Ky. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-commonwealth-kyctapp-1971.