Opinion
February 4, 1972.
Appeal from the Magoffin Circuit Court, Ben Mann, J.
Cassie J. Allen, Prestonsburg, for appellants.
John B. Breckinridge, Atty. Gen., Frankfort, James B. Wooten, Jr., Asst. Atty. Gen., Kentucky, for appellee.
Donald Collinsworth and Donald Ray Patrick were convicted in the Magoffin Circuit Court of grand larceny and arson. Their punishment was fixed by a jury at three years' imprisonment on the charge of arson and two years on the charge of grand larceny, the terms to be served consecutively.
The appellants seek reversal of the conviction of arson, contending that the lower court erred in overruling their motion for a directed verdict on the ground that the evidence was insufficient to sustain the verdict. They do not appeal the conviction of grand larceny.
On the evening of August 18, 1970, Calvin Cain's barn and its contents burned. Mr. Cain's wife testified that she saw the appellants across the road from the barn at approximately 9 p. m., and that they remained there until after 10 p. m. The barn allegedly burned between 10:30 p. m. and 11 p. m. A witness testified that appellant Collinsworth sold him two saddles. According to Mrs. Cain, those saddles were in the barn on the evening the barn was destroyed. Another witness testified that the appellants came to him on the night after the incident and asked him to say that they had been with him on the night of the fire. Evidence that appellants had made a rather indirect and vague threat against Mr. Cain a year prior to the incident was introduced to show that the appellants bore a grudge against Mr. Cain.
It is a well-settled rule in this jurisdiction that a conviction may be obtained on circumstantial evidence. However, no defendant may be convicted on such evidence if it is as consistent with innocence as with guilt. Fugate v. Commonwealth, Ky., 445 S.W.2d 675 (1969). Suspicion alone is not enough. Hodges v. Commonwealth, Ky., 473 S.W.2d 811.
The evidence was sufficient to warrant a finding that the appellants had entered the barn and stolen the saddles, but in our opinion it was not sufficient to show an intentional setting fire to the barn, which was required to sustain a conviction of arson. The trial court should have sustained the appellants' motion for a directed verdict on the arson charge.
The judgment convicting the appellants of arson is reversed, with directions that if on another trial the evidence is the same, a verdict of acquittal should be directed.
All concur.