Easley v. Commonwealth

320 S.W.2d 778

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: October 31, 1958
• Status: Published

Opinions

MONTGOMERY, Judge.

This appeal is from a judgment based on a conviction for burglary with a sentence of five years’ confinement. James Anderson Easley, appellant, assigns as error the rejection of his plea of former jeopardy and improper argument by the prosecuting attorney.

Early in the morning of November 26, 1956, while it was dark, appellant entered, the house then occupied as a dwelling by William Marshall Bullitt, now deceased. Entry was made by opening an unlocked window. Three other windows had been tried and found to be locked. Easley’s intention was to rob the safe known by him to be in the library of the home. For further statement of facts, see Easley v. Commonwealth, Ky., 320 S.W.2d 776, wherein the judgment for robbery of the safe has been affirmed.

Subsequent to the entry of his plea of not guilty, appellant entered a plea of former conviction,’ which was overruled. He now insists that the conviction for robbery of safe barred the prosecution for burglary because the same facts were developed in evidence on each trial by the same witnesses and constituted a single transaction.

The test to determine whether the acts committed at the same time and place constitute one or more offenses is, if proof of what is set out in the second indictment made on the trial of the first indictment would sustain it, then the two indictments are for the same offense. If what is set out in the second indictment when proved upon the trial of the first will not sustain it, then they are distinct offenses, and the conviction or acquittal of either is not a bar to the other. 2 Wharton’s Criminal Evidence, Section 653, page 551; Siegel v. Commonwealth, 177 Ky. 232, 197 S.W. 809. As stated in Scarf v. Commonwealth, 195 Ky. 830, 243 S.W. 1034, and again in Newton v. Commonwealth, 198 Ky. 707, 249 S.W. 1017, 1018, the rule is: “When the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will bar a second one.” Commonwealth v. Vaughn, 101 Ky. 603, 42 S.W. 117, 45 L.R.A. 858; Commonwealth v. Ladusaw, 226 Ky. 386, 10 S.W.2d 1089.

It thus becomes necessary to examine the charges and facts in the two cases. The indictment in the first case was for robbery of a safe. KRS 433.130. See Easley v. Commonwealth, Ky., 320 S.W.2d 776. The charge there was that of unlawfully opening by means of explosives or any other force a safe in which money was kept.

The burglary charge in this case, insofar as it is pertinent, follows: ,

“The said James Anderson Easley * * * with force and arms, unlawfully and feloniously did break and enter the dwelling house of William Marshall Bullitt * * * in the night time, with the intent to commit a felony therein, to-wit: Grand Larceny *

It is apparent that the elements of robbery of a safe under KRS 433.130 and of burglary are entirely different. The former offense could well have been committed by one living within or lawfully in the house, while the burglary offense, essentially an unlawful breaking and entering, could have been committed without the commission of the robbery of a safe. It may readily be seen that the charge in each indictment consists of different elements and is sustained by proof of different facts. The robbery of the safe could well have been proved in the first case without showing how Easley entered the dwelling, while proof of the unlawful breaking and entering charged in the second case would not have sustained the charge in the first case. The sameness of place and the close sequence in time of the two events do not require the conduct to be considered as a single transaction when two or more distinct and separate offenses are committed. 22 C.J.S. Criminal Law § 285, page 427; 15 Am.Jur., Criminal Law, Section 380, page 53, and Sections 389 and 390, pages 63-66; 9 Am.Jur., Burglary, Section 35, page 259; 2 Wharton’s Criminal Evidence, Section 650, page 544; Runyon v. Morrow, 192 Ky. 785, 234 S.W. 304, 19 A.L.R. 632. The plea of former conviction was properly overruled.

Appellant urges that the prosecuting attorney indulged in improper argument in three instances. The jury was asked to speculate as to what would have happened had Mrs. Bullitt entered the study while ap-1 pellant was slipping the panel catch with a knife he had found on a studio desk. It is argued that-this injects the element of violence into the case which is unwarranted. The second and third objections were based upon the arguments that the maximum penalty should be given because the personal protection of the jury members was involved and that appellant should be punished not alone for what he had done but as a deterrent to others.

The circumstances of the offense were admitted by the appellant. In determining the seriousness o'f the offense and the punishment to be fixed, it was proper for the jury to take into consideration any reasonable inference based on the facts. It, therefore, was proper for them to consider what appellant’s action might have been had Mrs. Bullitt discovered him.

In essence, the other two alleged improper arguments are the same; that is, the maximum punishment should have been given as a deterrent for the protection of the public, including the jurors. Assuming, but without determining, that such argument was improper, it was not prejudicial. Appellant did not receive the maximum punishment. Apparently, the jurors paid little attention to it in fixing his punishment at five years when the maximum was ten years. KRS 433.120. Considering the admitted and overwhelming testimony of guilt and the medium sentence received, there is no affirmative showing of prejudicial error. Criminal Code of Practice, Section 340; Tiernay v. Commonwealth, 241 Ky. 201, 43 S.W.2d 661; Lotheridge v. Commonwealth, 260 Ky. 500, 86 S.W.2d 278.

Judgment affirmed.