Smith v. Commonwealth

REED, Justice

(dissenting).

I respectfully dissent in this case because the evidence of guilt of the gravamen of the offense is clear and the alleged error, belatedly raised, could well be regarded as harmless.

KRS 433.290 declares it a criminal offense to receive any stolen property, the stealing of which is punishable as a crime, knowing it to be stolen. The trial court’s instructions were clear and direct on this vital part of the charge. The prescribed punishment for violation of this statute is arrived at by a formula whereby the same punishment is provided as is prescribed for the persons stealing the concerned property. The instructions clearly submitted to the jury the proper formula to determine punishment once a finding of guilt of the offense had been made. No objection was made to the evidence of value introduced by the prosecution; no objection to the form of the instructions was communicated to the trial judge at the time the instructions were given. The only complaint is that the court failed to instruct that if the jury entertained a reasonable doubt concerning “the degree of the offense” (the value of the property) it should fix the defendant’s punishment within the limits prescribed for the receipt of stolen property with value of less than $100, “the lower degree” of the crime charged.

Although I seriously question the fairness of the rule that permits the defendant’s counsel in a criminal case to stand silent while the judge commits merely technical error in the instructions, and then, if he loses his case with the jury, raise technical objections to the form of the instructions in a subsequent motion for new trial, I must accept its present force in our criminal law. Since it is an unrealistic rule based on artificiality, I would not extend it further than required.

I do not feel that the situation in the present case, where the jury must first determine guilt of the sole offense charged, to be analogous to the situation where the jury may entertain reasonable doubt concerning ingredient elements affecting the gravamen or substantive nature of the crime itself. The jury in this case was plainly told what it had to believe beyond a reasonable doubt before it could find the defendant guilty. It was then plainly told how to fix his punishment in the event of a finding of guilt based upon the evidence presented.

I freely concede that the majority opinion is supported by past precedents. These cases, in my opinion, are unsound because they ignore the distinction between the elements of an offense and a formula for determining punishment. When the total circumstances of this case are considered, I do not believe that any prejudice was suffered by the defendant and I would not disturb the verdict of the jury or the judgment based on that verdict.