Spencer v. Commonwealth

467 S.W.2d 128, 1971 Ky. LEXIS 354
CourtCourt of Appeals of Kentucky
DecidedMay 7, 1971
StatusPublished
Cited by5 cases

This text of 467 S.W.2d 128 (Spencer 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
Spencer v. Commonwealth, 467 S.W.2d 128, 1971 Ky. LEXIS 354 (Ky. Ct. App. 1971).

Opinion

EDWARD P. HILL, Jr., Judge.

Appellant was convicted of larceny of an automobile, a crime denounced by KRS 433.220, and her punishment was fixed at 18 months in the state penitentiary. Appellant has listed eight questions in her table of contents and authorities. After a brief statement of the facts, we shall discuss them in the order in which they appear in appellant’s brief without setting them out here. We affirm.

Appellant was charged jointly with Clifford Wayne Williams and Jack Ray Williams, brothers, with a number of crimes involving the theft of automobiles. All the indictments were dismissed for lack of evidence except one under which appellant was tried in which they were charged with stealing a 1967-model Chevelle super sports automobile from Joseph Rebholtz. At the conclusion of all the evidence, the trial judge directed a verdict of acquittal as to the two Williamses for lack of evidence to corroborate that given by the accomplices, leaving the appellant as the only one of those charged to be caught in the legal net. She would have escaped but for evidence that she owned a 1967 Chevelle super sports car like the one stolen from Reb-holtz and had possession of a four-speed transmission which was identified as having been in the Rebholtz car at the time it was stolen.

On June 29, 1967, the Rebholtz car was stolen at the Beacon Inn. It was later found near California, Kentucky, where it had been placed in a barn after the removal of its transmission. Both the car and the barn were burned and destroyed.

It was proved in evidence that between June 7, 1969, and July 1, 1969, two other automobiles were stolen in this community and both burned, giving rise to speculation that they were burned to destroy any fingerprints or other evidence.

In addition to the appellant and the two Williams brothers, two other persons were involved in the crime of which appellant was convicted. They were Frank Steinhauer, age 16, and James Roe, age 17. These two juveniles “spilled the beans” and gave evidence that appellant was present when the car was stolen and drove some of the participants in the crime to the barn where the car was concealed.

Steinhauer testified that appellant needed a four-speed transmission or some head[130]*130ers for the same for her 1967-model Chev-elle sports car; that the five of them spotted the Rebholtz car; that he and Clifford Williams “hot wired” the car and drove it to a barn near California, Kentucky; that while he, Jack Williams, and Roe removed the transmission from the stolen car, appellant sat in a car belonging to Steinhauer as a lookout for approaching cars or persons;, that on the following day, appellant gave him (Steinhauer) the transmission from her car in return for the one taken from the stolen car.

A month later, the appellant took a transmission to a service station in Coving-ton, Kentucky, and requested the owner, Mr. Wilder, to install it in her car. It was discovered by Wilder that the number of the transmission had been filed off. He contacted the police which resulted in the identification of the transmission by Reb-holtz and his mechanic. The mechanic had recently repaired the transmission and rebored and rethreaded the drainage socket and placed a plug therein that possessed some peculiar color characteristics, so that the identification was positive and convincing.

Appellant’s first argument that the verdict is not supported by the evidence is without merit. Her presence at the time of the crime, assisting the principal actors, is strong and convincing proof of guilt. S2A C.J.S. Larceny §§ 54 and 55. Also her possession of a part of the stolen car, of itself, was sufficient corroboration of the testimony of her two accomplices to justify the verdict. 23 C.J.S. Criminal Law § 812(4). Quillen v. Commonwealth, 284 Ky. 792, 145 S.W.2d 1048 (1940), and Broughton v. Commonwealth, 303 Ky. 18, 196 S.W.2d 890 (1946).

Appellant next claims that the testimony of the accomplices was not corroborated. The brief answer to this argument is that there was evidence that appellant took the transmission that came from the stolen car to a garage to have it installed in her own car.

The third point made, in appellant’s brief is that error was committed at her trial by failure of the trial judge to instruct the jury concerning the corroboration necessary to support the evidence of the accomplices. An admonition was given verbally by the trial judge concerning the requirements of RCr 9.62 at the time he dismissed the charges against the Williams brothers. But the clincher to this argument results from the testimony that appellant was shown to have possession of part of the stolen car. As observed above, all the testimony of the accomplices could be disregarded and there would still be sufficient evidence to convict. In such a situation, an instruction under RCr 9.62 is not required. Sarver v. Commonwealth, Ky., 425 S.W.2d 565 (1968); Chaney v. Commonwealth, Ky., 307 S.W.2d 770 (1957); and Dunn v. Commonwealth, Ky., 350 S. W.2d 709 (1961).

Appellant’s fourth ground for reversal is that the trial court erred in failing to give the jury an instruction that appellant’s failure to testify should not be considered by the jury. She relies on Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257, and Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

True Bruno, supra, holds that under federal criminal proceedings the defendant is entitled to an instruction on his failure to testify if requested. No request for such an instruction was made in the present case during the trial, nor was the point raised in her motion and grounds for a new trial.

KRS 421,225(1), among other things, provides that the failure of a defendant to testify in his own behalf “shall not be commented upon or create any presumption against him.”

The foregoing section of the statute is an augmentation of section 11 of the Constitution of Kentucky insofar as it pertains to the protection of the defendant against [131]*131self-incrimination. Actually a defendant could not be compelled to give evidence against himself under common law.

Our statute merely says that the fact a defendant chooses not to testify “shall not be commented upon or create any presumption against him.” This statute intended to silence not only the attorney representing the prosecution but the trial judge also. In the early case of Tines v. Commonwealth, 25 Ky.Law Rep. 1233, 77 S.W. 363, the trial court gave a similar instruction. This court had the following to say about the instruction:

“The court, by the instruction in question, did appellant the very injury which it is the object of the law to prevent.

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

Related

Salinas v. Commonwealth
84 S.W.3d 913 (Kentucky Supreme Court, 2002)
Robinson v. Commonwealth
550 S.W.2d 496 (Kentucky Supreme Court, 1977)
Scott v. Commonwealth
495 S.W.2d 800 (Court of Appeals of Kentucky (pre-1976), 1973)
Dixon v. Commonwealth
478 S.W.2d 719 (Court of Appeals of Kentucky, 1972)
Bellew v. Commonwealth
477 S.W.2d 779 (Court of Appeals of Kentucky, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
467 S.W.2d 128, 1971 Ky. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-commonwealth-kyctapp-1971.