Sizemore v. Commonwealth of Kentucky

66 S.W.2d 16, 251 Ky. 792, 1933 Ky. LEXIS 959

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: December 15, 1933
• Status: Published

Opinion

Opinion of the Court by

Chief Justice Rees

Reversing.

This appeal involves precisely the same question presented in Gipson v. Commonwealth, 251 Ky. 793, — S. W. (2d) —, this day decided. The appellants, John Size-more and George Sizemore, were jointly indicted for the offense of confederating and banding together for the purpose of injuring the property of another, and upon their trial were found guilty and sentenced to a term of one year each in the penitentiary

The evidence for the commonwealth shows that appellants, pursuant to a threat theretofore made, shot and killed a cow belonging to A. L. Brewer. Two witnesses identified them as the persons who committed the offense. Appellants claim they were not present when the crime was committed.

The only ground urged for a reversal of the judgment which has any merit is that the trial court committed prejudicial error in giving the instructions to the jury orally over the appellants’ objections..It is'-suggested by the Attorney General that appellants cannot take advantage of the error, since the record fails to show that a motion and grounds for a new trial was filed by them. However, a supplemental record has been filed by the clerk of the Leslie circuit court which discloses that a motion and grounds for a new trial were filed, and that one of the grounds relied upon for a new trial was the giving of the instructions orally.

On the authority of Gipson v. Commonwealth, supra, and the cases cited therein, the judgment is reversed, with directions to grant appellants a new trial.