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291 Ky. 719

165 S.W.2d 566

Jones v. Commonwealth

Court of Appeals of Kentucky (pre-1976)

Decided October 27, 1942

Court of Appeals of Kentucky (pre-1976) · decided 1942-10-27

Cited by 11 later decisions — most recently January 1992

3 federal appellate · 8 state decisions

Key passage — most relied on by later courts

““You will find the defendant, William Wells, guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following: (a) That in this county on or about May 21, 1976, and before the finding of this indictment herein, he inflicted serious physical injury upon Rodney Cline by shooting him with a pistol, a deadly weapon. (b) That the injury was a serious physical injury; (c) That in so doing, the defendant: (1) Intended to cause serious physical injury to Rodney Cline and that said pistol was a deadly weapon. Or, (2) Was wantonly engaging in conduct which created a grave risk of death to another and that he thereby caused Rodney Cline’s injury under circumstances manifesting extreme indifference to the value of human life; And, (d) That in so doing, the defendant was not justified.””

quoted by 1 later decision, including Wells v. Commonwealth

Relies on Botnick v. Commonwealth · Mabe v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1942-10-27

View the full empirical analysis of this case →

¶1 Opinion of the Court by

Judge Cammack

¶2 — Reversing.

¶3 Apparently without objection, O. C. Jones was tried under an indictment' charging him with grand larceny and knowingly receiving stolen property. He was found guilty and his punishment fixed at three years in the pen *720 itentiary. It is conceded that the evidence was sufficient to sustain a conviction on either count. Jones is urging that the judgment be reversed because the court erroneously instructed the jury.

¶4 The instruction to which complaint is first directed follows:

“III. If you shall believe from the evidence, beyond a reasonable doubt, that the defendant, O. C. Jones, unlawfully, wilfully, feloniously and knowingly received the bicycle mentioned in the evidence from Lloyd Hall, knowing’ at the time that said bicycle had been stolen, you will find the defendant, 0. C. Jones, guilty of the offense of receiving stolen property as charged in the indictment.”

¶5 Before one charged with knowingly receiving stolen property may be convicted of a felony, the property stolen and received must be of the value of $20 or more. KRS 433.290, 433.220 (KS 1199, 2739g-58). While the first instruction which had to do with the charge of grand larceny properly referred to the value of the stolen article, this would not cure the defect in Instruction No. 3, because the jury may have concluded that Jones was not guilty under the first count, but was under the second, which also charged the commission of a felony. It was held expressly in Botnick v. Commonwealth, 266 Ky. 419, 99 S. W. (2d) 188, that an instruction authorizing a conviction of a felony, without regard to the value of the property received, was erroneous.

¶6 The last sentence of KRS 433.290 (KS 1199) provides :

“The possession by any person of any stolen property shall be prima facie evidence of Ms guilt under this section.”

¶7 Instruction No. 7 follows:

“The possession of any stolen goods, under the law, shall be prima facie evidence of the guilt of the one accused.”

¶8 Jones insists that this instruction virtually told the jury that he was guilty, because he admitted receiving the bicycle and disposing of it. Such an instruction was condemned in the BotMck case, supra. The opinion in that case amply sets forth the reasons for not instruct *721 ing the jury on the weight of the evidence. See also Mabe v. Commonwealth, 279 Ky. 432, 130 S. W. (2d) 805. We might add also that KBS 433.290 (KS 1199) does not direct that the jury be instructed that the possession of stolen property shall be prima facie evidence of guilt. The provision is more in the nature of a guide to be followed by the trial judge in determining whether there is sufficient evidence to warrant the submission of a case to the jury.

¶9 It follows that the judgment should be and it is reversed, with directions to set it aside and for proceedings consistent with this opinion.

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