Faison v. Commonwealth

405 S.W.2d 944
CourtCourt of Appeals of Kentucky
DecidedMarch 25, 1966
StatusPublished

This text of 405 S.W.2d 944 (Faison 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
Faison v. Commonwealth, 405 S.W.2d 944 (Ky. Ct. App. 1966).

Opinion

MONTGOMERY, Judge.

Rodney Faison was convicted of conspiracy to commit a felony. He was sentenced to five years’ confinement. He contends [944]*944on appeal that the court erred in failing to direct a verdict for appellant because of: (1) a failure to prove venue; (2) a failure to establish a corpus delicti; and (3) a failure to corroborate the accomplice’s testimony. Other suggestions of error are made but in the absence of supporting argument or authority they are considered merit-less.

In the indictment appellant was charged jointly with Rudolph Hamilton and Sylvester Coleman. Appellant was tried separately. Hamilton was convicted of willful murder committed in the course of a robbery. Hamilton v. Commonwealth, Ky., 401 S.W.2d 80 (decided March 25, 1966).

The body of the indictment is as follows:

“The Grand Jury charges:
On or about the 28th day of Dec., 1963, in Meade County, Kentucky, the above named defendants committed Conspiring to commit a felony by entering into a conspiracy to commit the crime of robbing the Basham Tavern in Meade County, Kentucky, against the peace and dignity of the Commonwealth of Kentucky.”

Appellant argues that inasmuch as the indictment recited “in Meade County” and appellant was not in Meade County on that day, then his motion for a directed verdict should have been sustained because there was a failure to prove venue. The proof shows that the alleged conspiracy was formed in Hardin County, an adjoining county to Meade County.

On December 28, 1963, appellant, Hamilton, . and Coleman were members of the armed forces stationed at Fort Knox. During the afternoon of that day the.three men went to Elizabethtown in Hardin County in appellant’s car. During the course of the afternoon and early evening they had several drinks. According to the testimony of Coleman, who implicated appellant, the plans for robbing Basham’s Tavern, a liquor store located in Meade County about three miles from Fort Knox, were formulated on the return trip from Elizabethtown to Fort Knox. Coleman, in referring to appellant, testified:

“Oh yes it was understood between the three of us that his car would be used and that he was a part of it along with the rest of us. It was understood.”

Normally the venue of a prosecution is in the county in which the offense is committed. KRS 452.510. However, KRS 452.570 provides: “Where a person in one county aids, abets or procures the commission of an offense in another county he may be tried for the offense in either county.”

There is no merit in appellant’s argument that there was a failure to prove venue. Under KRS 452.570 appellant, as the conspirator who aided, abetted, or procured the commission of the robbery by Hamilton, could have been tried either in Hardin County where the conspiracy was formed or in Meade County where the object of the conspiracy was accomplished. This was in accord with the plain language of the statute.

Further, under the proof, the robbery, a felony, was committed in Meade County. A conspiracy to commit a felony, when executed, is merged in the felony. Commonwealth v. Blackburn, 62 Ky. (1 Duv.) 4; Commonwealth v. Barnett, 196 Ky. 731, 245 S.W. 874. Under the merger theory Meade County was the proper venue for the offense. In Martin v. Commonwealth, 193 Ky. 835, 237 S.W. 1066, it was held that where various persons were charged with conspiring in Bell County, Kentucky, to commit murder, if the killing occurred in Tennessee, the venue of the crime would be in Tennessee where the killing occurred although the conspiracy was formed in Kentucky. See Roberson’s New Kentucky Criminal Law and Procedure, 2d Edition, Section 225, page 322. This case arose before enactment of KRS 452.570.

Lastly, RCr 8.26 provides for a change of venue if it appears from the indictment, information, or evidence that the offense was [945]*945committed in a county other than that in which the trial is being held. KRS 452.650 provides:

“The venue of the prosecution may be waived by the defendant and the failure to make a timely motion to transfer the prosecution to the proper county shall be deemed a waiver of the venue of the prosecution.”

The claimed lack of venue in Meade County should have been discovered and should have been raised by a timely motion prior to the trial. The failure to do so is a waiver of the objection. Taylor v. Commonwealth, Ky., 384 S.W.2d 333. It, therefore, is concluded that there was proper venue in Meade County under KRS 452.570 and under the merger doctrine, and that appellant waived any right to question the venue of the prosecution by failure to file a timely motion. The authorities submitted by appellant in support of his contention are not in point since they do not deal with a conspiracy.

Appellant contends that there was a failure to prove a corpus delicti. In Witt v. Commonwealth, 305 Ky. 31, 202 S.W.2d 612, it was said:

“Corpus delicti means the fact that the particular crime alleged has been actually committed by some one, and is made up of two elements: first, the existence of a certain act or result forming the basis of the criminal charge; and, second, the existence of criminal agency as the cause of this act or result. The corpus de-licti may be established by circumstantial evidence as any other fact in the case.”

The first requisite of corpus delicti, the criminal act, was established by the testimony of Earl Shelman, who said that he was present in the liquor store when Hamilton “stuck a gun in my throat and demanded the money.” He also said, “I gave him the money and he left the store.” This testimony was sufficient to establish the basis of the criminal charge.

“The- existence of criminal agency as the cause of this act,” the second requisite of corpus delicti, will be discussed in connection with appellant’s contention that the testimony of the accomplice, Coleman, was not sufficiently corroborated. In addition to giving the details of the robbery, Shel-man identified Hamilton, one of the conspirators, as the holdup man. LeRoy F. Lussier, a military investigator to whom Coleman and Hamilton made statements, testified that Coleman said that it was understood by appellant, Coleman, and Hamilton that appellant’s car would be used in the robbery and that he, Coleman, drove the car away from the tavern after the robbery to Pinwheel Loop where the car was wrecked. Lussier also testified that Hamilton told him that appellant helped to plan the robbery.

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Related

Harris v. Commonwealth
285 S.W.2d 489 (Court of Appeals of Kentucky (pre-1976), 1955)
Barker v. Commonwealth
385 S.W.2d 671 (Court of Appeals of Kentucky (pre-1976), 1964)
Hamilton v. Commonwealth
401 S.W.2d 80 (Court of Appeals of Kentucky (pre-1976), 1966)
Witt v. Commonwealth
202 S.W.2d 612 (Court of Appeals of Kentucky (pre-1976), 1947)
Taylor v. Commonwealth
384 S.W.2d 333 (Court of Appeals of Kentucky, 1964)
Flora v. Commonwealth
387 S.W.2d 15 (Court of Appeals of Kentucky, 1964)
Commonwealth v. Blackburn
62 Ky. 4 (Court of Appeals of Kentucky, 1863)
Martin v. Commonwealth
237 S.W. 1066 (Court of Appeals of Kentucky, 1922)
Commonwealth v. Barnett
245 S.W. 874 (Court of Appeals of Kentucky, 1922)

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Bluebook (online)
405 S.W.2d 944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faison-v-commonwealth-kyctapp-1966.