Henry v. Commonwealth , 1965 Ky. LEXIS 292 ( 1965 )

HILL, Judge.

On September IS, 1964, appellant filed motion in the Crittenden Circuit Court under RCr 11.42. On November 18, 1964, the trial court overruled this motion without a hearing, from which order this appeal is prosecuted.

On June 30, 1964, the appellant was tried and convicted under a 2-count indictment charging him with possession of burglary tools and storehouse breaking. He was given three years on the first count and two years on the second. He was represented at the trial by counsel of his own selection. No appeal was prosecuted.

This attempt in forma pauperis relies on the alleged insufficiency of the evidence to sustain the verdict. His complaint is that he was convicted wholly on the testimony of an accomplice without any evidence to support it. This question could have been presented by direct appeal from his original conviction but is not the subject of review under RCr 11.42.

In King v. Commonwealth, Ky., 387 S.W.2d 582, this Court, in an effort to assist all concerned with the proceedings under RCr 11.42, set out certain types of contentions which may not be entertained under RCr 11.42. The first type so listed was “[t]hat the evidence at the trial was insufficient to justify conviction.”

On the authority of the King case, supra, and the cases therein cited, the judgment is affirmed.