Opinion
Decided May 24, 1932.
Appeal from Estill Circuit Court.
HAFFORD E. HAY for appellant.
BAILEY P. WOOTTON, Attorney General, and H. HAMILTON RICE, Assistant Attorney General, for appellee.
Affirming.
Appellant was convicted of the offense of breaking into a dwelling house of another with intent to steal therefrom and stealing therefrom a Victrola and twenty records. He was sentenced to serve five years in the penitentiary.
The sole ground relied upon for a reversal of the judgment of conviction is that the verdict finding appellant guilty is flagrantly against the evidence. This contention lacks even the color of merit as a brief resume of the evidence will itself disclose.
One evening in September, 1930, Arch Chaney saw appellant and Clyde Dixon in the vicinity of the home of Mrs. Annie Alcorn. He observed them go up on the front porch of this house and try the front door which they were unable to open. He then saw them go around to the back of the house, and heard a noise as though a door were being broken down. A little later, he saw these two men leaving the back of the house, one carrying a sack which appeared to be full of something heavy, and the other carrying what appeared in the dusky light to be a box. Mrs. Alcorn, who was not at home when the house was broken into, testified that, she left it securely looked and fastened up, and that on her return she found that it had been broken into and that her Victrola and nineteen records had been stolen. Other witnesses testified to having seen appellant and Dixon with the box and sack, and some tell of seeing them with Mrs. Alcorn's Victrola and records after their disappearance from the Alcorn home. The witness Abney testified that he bought the Victrola and records from appellant and Dixon, and that the latter delivered them to him. Abney's wife corroborated him. Appellant and Dixon deny they broke into the Alcorn home, and, whilst they admit selling the Victrola and records to Abney, they say they did it for a boy by the name of Rice, who, they claim, admitted that he had stolen the Victrola and records. Rice denies this. In this state of the evidence, it is very clear that not only is the verdict not flagrantly against the evidence, but that it is abundantly supported by it.
Judgment affirmed.