October 10, 2012

Saylor v. Commonwealth, Laurel, 1900


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57 S.W. 614; 1900 Ky. LEXIS 592; 22 Ky. L. Rptr. 472

June 20, 1900, Decided


Appeal from circuit court, Laurel county.

Robert Saylor was convicted of the offense of barn-burning, and he appeals.


COUNSEL: R. L. Ewell, for appellant.

R. J. Breckinridge, for the Commonwealth.




 [*615]  DU RELLE, J. The appellant, with two others, was indicted for the offense of barn-burning, alleged to have been committed by burning a "barn and stable." A motion requiring the commonwealth to elect whether it would prosecute for burning a barn or burning a stable was overruled. It is contended that burning either would be an offense under section 1169, Ky. St. Primarily, a barn is a building for the storage of grain and fodder, and a stable is a building for lodging and feeding horses and other domestic animals. But in this country the words are used interchangeably. It is stated in Webster's International Dictionary that "in the United States a part of a barn is often used for stables." In this case the building burned was in fact a combination one, and we think it immaterial whether it was described in the indictment as a barn or a stable, or a barn and stable. At all events, the description could not have misled the appellant to his prejudice.

The affidavit for a continuance  [**2] disclosed absolutely no effort to secure the attendance of the witness on account of whose absence the continuance was asked.

We think there was sufficient evidence to go to the jury upon the question of conspiracy. It was, therefore, not error to instruct the jury on that question.

The incompetent evidence as to opinions of some of the witnesses seems to have been promptly excluded from the jury by the court. The objectionable argument of the prosecuting attorney does not appear in the bill of exceptions, and we, therefore, cannot consider it. It appears only in the motion for new trial.

The indictment charged a conspiracy to burn the barn, which was executed, and also, in separate counts, charged each of the three defendants with burning it, the others aiding and abetting. The jury returned a general verdict of guilty as charged against this appellant, and it is objected that the verdict was too uncertain and indefinite, in failing to show whether appellant burned the barn, With the others aiding and abetting, or whether he merely aided and abetted one or both of the others. In felonies, as well as in misdemeanors, there is now no distinction between principals of the first and second  [**3] degrees. All participants are principals. 1 Bish. New Cr. Law, § 656. It would seem, therefore, to be entirely immaterial what conclusion was reached in the minds of the jury as to the manner in which the crime was committed. But one offense is actually charged in the indictment. See Cupp v. Com., 87 Ky. 35, 7 S. W. 405.

It is also objected that evidence was introduced showing that appellant failed to appear in compliance with the conditions of his bail bond, and Morgan v. Com., 14 Bush, 107, is relied on. In that case the offer of the commonwealth to prove the conduct of the prisoner after the indictment was found against him, by showing from the record of the case that he had forfeited his bail bond and had eluded arrest, was held to be properly rejected by the court. No reason is given for this ruling in the opinion. It has been several times held competent to prove a defendant's escape from jail, or that he had fled the state after the commission of the offense. Ryan v. Com., 5 Ky. Law Rep. 177; Baker v. Com. (Ky.) 17 S. W. 625. So, in Basham v. Com., 87 Ky. 440, 9 S. W. 284, in an opinion by Judge Bennett, it was held: "It is competent for the commonwealth to prove that the accused,  [**4] after committing the act or having been accused of it, fled or concealed himself, or was guilty of any other conduct inconsistent with his innocence." We think the latter case states the general rule, and is sustained by authority. It was, therefore, competent to show that after giving bond the appellant left the county and remained absent, and that his bond was forfeited for failure to appear; this conduct being at least to some extent inconsistent with his innocence, though susceptible of explanation, which he attempted to give. The judgment is affirmed.

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