Chambers v. Commonwealth , 287 Ky. 270 ( 1941 )

Opinion op the Court by

Chirp Justice Rees

— Reversing.

The appellant, Duluth Chambers, has been convicted of stealing chickens and sentenced to a term of one year in the state penitentiary. On this appeal he asks for reversal of the judgment on the sole ground that the trial court erred in overruling his motion for a directed verdict of acquittal.

Appellant and Junior Vires were jointly indicted for stealing chickens of the value of more than $2 from-Walter Little. Junior Vires has not been tried under the indictment, but has been convicted on another charge-of chicken stealing and was in the penitentiary when appellant was tried. The evidence incorporated in the bill' of exceptions is in narrative form. The prosecuting witness, Walter Little, testified he was awakened by a noise, heard a chicken flutter, and, upon looking out,, saw two men in the henhouse and when they came out he recognized them, and that he is not positive that he saw appellant hut he is positive he saw and recognized Junior Vires. A search warrant was obtained, and the-sheriff searched appellant’s house and premises but failed to find any chickens. He also searched the house where Junior Vires lived and found three chickens which Little identified as chickens that had been stolen from-him.

We have read the record carefully, and have been unable to find any evidence tending to show that appellant was connected with the commission' of the crime for which he was tried. There was no evidence authorizing a submission of the case to the jury, and the trial court erred in overruling appellant’s motion for a directed verdict of acquittal. The Attorney General frankly concedes that the judgment should be reversed.

The judgment is reversed, with directions to grant-appellant a new trial, and for further proceedings consistent herewith.