Roberts v. Commonwealth , 1967 Ky. LEXIS 117 ( 1967 )

MILLIKEN, Judge.

The appellant, J. D. Roberts, was found guilty of cattle stealing and sentenced to six years in the penitentiary. He seeks a reversal of his conviction upon the ground that the indictment was inadequate and that the Commonwealth’s evidence was insufficient to sustain the conviction.

The indictment expressly charged him with stealing eight cows, two calves and one Hereford bull of the approximate value of $2,500.00, the property of Charlie Kephart and Pleas Mitchell, on July 31, 1966, in Henry County, Kentucky, in violation of KRS 433.250, the statute governing cattle stealing. The indictment fully conformed to the new rules governing procedure in criminal cases, namely, RCr 6.10, for it was a plain, concise and definite statement of the essential facts constituting the specific offense with which the defendant was charged. Although reference to the value of the cattle was unnecessary, it was not misleading and was mere sur-plusage and did not invalidate the indictment. RCr 6.14. Since the indictment expressly stated that it was under KRS 433.250, governing cattle stealing, it is difficult for us to conclude that the surplus language as to value confused defendant in any way.

The testimony shows that Roberts lived in Henry County and was there the day the cattle were stolen. It was also established that he had pasturage rights to the farm about an hour away in Jefferson County, Indiana, where the cattle were located a couple of weeks later. It was further shown that Roberts had fenced an enclosure on the Indiana farm in the previous May and that there had been no cattle pastured there until the early morning hours of August 1, when Roberts’ Indiana neighbors heard the bawling of the cattle as they were unloaded from a truck. On the afternoon of that day Roberts informed these same neighbors that he had bought the cattle at a sale. Roberts also owned a black and red truck and black, and red scuff marks were found on the entrance of the barn from which the cattle had been stolen. It appears to be conceded by all that the cattle were those stolen from the barn of Kephart and Mitchell in Henry County, Kentucky.

The only evidence of consequence offered in behalf of Roberts was that of his stepdaughter who said that he was at home all day the day of the theft and that Roberts and his wife baby-sat her small daughter while she attended a drive-in movie at Sli-go. She testified that Roberts was sound asleep when she returned home about 11:30 p.m., and was there about 5:30 a.m. when she got up to get ready for work.

We think the skein of evidence linking Roberts with the theft of the cattle, when not explained away, was clearly sufficient to sustain the jury’s verdict that Roberts was guilty beyond a reasonable doubt.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MONTGOMERY, PALMORE and STEINFELD, JJ., concur. OSBORNE, J., not sitting.