Opinion
October 8, 1971.
Appeal from the Circuit Court, McCracken County, C. Warren Eaton, J.
Joseph S. Freeland, Paducah, for appellants.
John B. Breckinridge, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
Gregory Simons, Michael Simons, and Glen Bradley appeal from judgments sentencing them to two years' imprisonment pursuant to a jury verdict finding them and a codefendant, Ricky Ingram, guilty of storehouse breaking. KRS 433.190. Their only contention is that the evidence was insufficient to support the verdict.
Shortly after 1:00 A.M. on August 4, 1970, these four boys and a companion, "Bo" Pitts, arrived in two automobiles, a red Pontiac and white Chevrolet, at the village of Grahamville. The cars stopped near the Davis clothing store, at once attracting the attention of Beverly Lunsford, a neighbor who lived across the street from the store. She saw three of the boys raising the hood of the Pontiac, "and acting like they were working on the car," and one opening the trunk of the Chevrolet. Two walked from the Pontiac to a space between the Davis store and an adjacent building, disappeared from view, and then returned to the car. Presently one of them went back across the street and broke a pane of glass in the front door of the store. A shot rang out and the boy who had broken the door ran back to the Pontiac, but it departed before he could get in, whereupon he ran beside the witness' house. The Chevrolet also left the scene. On the next morning the witness found a shoe in the vicinity of where the boy on foot had run near her house.
Robert Davis lived upstairs over the Davis store. Shortly after 1:00 A.M. he was awakened by a telephone call. He arose and stationed himself, shotgun in hand, by a window from which he could see out into the street. He saw three youths apparently working around the Pontiac. Two of them waved toward the store building, and after a brief interval he heard the shattering of glass below. He then turned on a light, reported the incident by telephone to his father, and returned to the window in time to see the boy Mrs. Lunsford described as having broken the door running across the street and attempting, unsuccessfully, to enter the departing Pontiac. The witness fired a shot through the window at the back of the Pontiac and for the first time noticed the Chevrolet as it was leaving.
Meanwhile, Davis' father, who lived a short distance away, armed himself, got in his automobile, and started toward the store. As he approached he saw the white Chevrolet come around the corner with its lights off and the hood raised. The driver stopped and got out to lower the hood, and when he did this the witness apprehended him at gunpoint. This proved to be the appellant Gregory Simons. He was alone.
At about 1:30 A.M. a police officer of the nearby city of Paducah, having received a radio report describing the Pontiac, observed and stopped a car answering to the description. It was occupied by Ricky Ingram and the appellants Michael Simons and Glen Bradley and had shotgun pellets imbedded in its top rear portion.
Testifying for the Commonwealth, Bo Pitts said that he got together with the other four boys at Michael's house during the evening of August 3. It was Gregory's idea to go out to the Davis store, and Gregory led the way in his white Chevrolet, the others following in a Pontiac driven by Ingram. Pitts asked where they were going, and Gregory said they were going to tend to some business. When they stopped at Grahamville, Gregory came over to the Pontiac and said, "Somebody go watch," so Pitts got out to do so, whereupon Gregory threw a rock at the storefront, a light came on, and the witness saw a shotgun and ran. ("I ran off and left my shoes.") He denied having gone across the street or having thrown the rock. Presumably, though he did not say so, Pitts effected his escape shoeless and afoot.
Each of the four defendants testified in his own behalf. Ingram, Bradley, and Michael Simons said they were going out through Grahamville so that Michael could show Ingram where the Shawnee Steam Plant was. Pitts came along for the ride. At Grahamville they had engine trouble, and while they were trying to do something about it Pitts drew off in the direction of the Davis store to perform some mission of his own — perhaps to relieve himself. According to their stories, it had to be Pitts who broke the door, and of course when the fireworks started they were inspired to vacate the scene, though innocent of any wrongdoing. Gregory Simons said he had parted company with the others earlier in the night and was returning through Grahamville from a nocturnal visit to his uncle's place in that vicinity when, quite unexpectedly, he came upon his friends in distress and stopped to render aid. When the moment of departure was heralded from over the store, by the sheerest coincidence he too found that he had car trouble. And so on.
The evidence was sufficient.
The judgment is affirmed.
All concur.