Opinion
February 5, 1960.
Appeal from the Circuit Court, Jefferson County, Criminal Branch, Second Division, L.R. Curtis, J.
Ralph H. Logan, Hardy Logan, Rush Nicholson, Louisville, for appellant.
Jo M. Ferguson, Atty. Gen., David Sebree, Asst. Atty. Gen., for appellee.
Appellant, Floyd Guinn, was found guilty of conspiracy under KRS 437.110 and his punishment was fixed at a fine of $300 and imprisonment in the county jail for a period of two years. He has moved for an appeal.
Appellant was convicted with Stoy Decker and Robert M. Cox whose sentences have this day been upheld by this Court. As to this appellant, however, we have concluded that the evidence was insufficient and that appellant should have been given a directed verdict. We have carefully examined the lengthy record and it discloses barely enough to create a suspicion of appellant's participation in the conspiracy. This appellant and his co-defendants were seen together on the night of the crime and it is shown that they were associates having mutual interests in the subject out of which the trouble arose. However, there is no proof of act, statement or circumstance that creates more than a suspicion of his complicity as a conspirator. This will not sustain a conviction and a directed verdict should have been given for this appellant. Baird v. Commonwealth, 241 Ky. 795, 45 S.W.2d 466; Gammons v. Commonwealth, Ky., 305 S.W.2d 932.
The motion for appeal is granted and the judgment is reversed for proceedings not inconsistent with this opinion.