Britton v. Commonwealth , 1923 Ky. LEXIS 235 ( 1923 )

Opinion of the Court by

Judge Clay

Affirming.

Appellant was, convicted of feloniously breaking into a dwelling house and taking therefrom something of value, and his punishment fixed at two years’ confinement in the penitentiary.

The evidence shows that when William Tye and wife left their home, they closed the windows and locked the doors, and when they returned in about two weeks, they found that the house had been entered and a Marlow shot gun had been stolen. The gun was traced to appellant, who claimed to have bought it from a stranger.

Appellant insists, that the evidence is insufficient to show that the house broken into was in Whitley county, or that it was. a dwelling house, or that the gun taken was of any value.

The trial took place at Williamsburg, the county seat of Whitley county. William Tye, the owner of the house, after testifying that he lived on Mill street, that his house was entered by someone the last of January, and that he had left his, house about January 17th, and before it was broken into, then testified as follows: “Q. That was before the grand jury? A. Yes, sir. Q. That was in Whitley county A. Yes, sir. ’ ’ In each of the f oregoing questions the word, “that” evidently means the same thing and refers either to the place where the witness left his house, or the place where the breaking occurred, and in either event, the answer shows that the house broken into was located in Whitley county.

It is apparent from Tye’s testimony considered as. a whole that the house broken, into was the place where he and his wife lived and made their home, and, therefore, there is no merit in the contention that the evidence did not show that the house was a dwelling house.

The evidence shows that the gun taken was a Marlow shot gun,' and that the owner .sold it for $25.00, although the purchaser had not paid for it. As this evidence was uncontradicted, it was not only sufficient to sustain a conviction, hut clearly authorized the court to assume in its instructions that the gun had some value.

We find no merit in the other contentions.

Judgment affirmed.