Reversing.
Howard Penix appeals from a one-year sentence for chicken stealing.
The indictment is in the usual form and not subject to criticism.
The principal ground urged for reversal is that the evidence was insufficient either to take the case to the jury or to sustain the verdict. According to Alice Hutchison, she lived on North Eighth street, one block from Oak Street. She lost some chickens on October 15, 1935. They were taken from her hen house, and consisted of three Domineckers, one white hen, one Rhode Island red, and one rooster, six in all. When she went to bed that night the chickens were in the *Page 769 hen house and the door was closed. She heard the dogs barking about 11 o'clock. She did not know the chickens were gone, but missed them the next morning between 7 and 8 o'clock. Earl Bowman lived about a block from Alice Hutchison. There were a few bushes and a building or two between the two houses. On the night of October 15th he was up and the dog was barking. He did not know for sure what time it was. He saw Elmer Jennings and Howard Penix and two girls go down the street toward the pit. About five minutes later the two girls came back, and in about ten minutes the boys came to Maggie Clark's house. They went in there and stayed a while. Directly Howard came out and he sat there and watched Howard. The next morning about 7 o'clock he went over to Maggie Clark's and saw the two boys dressing some chickens. At the time he saw the boys leave the girls he could not tell exactly where they went. They went in the direction of Alice Hutchison's house, but had not turned toward it then. The dogs were barking down that way, but he did not hear any chickens "hollowing." It was ten or fifteen minutes later when the boys came back. They came from the direction of Terrell's pit. The boys had something, but he did not know what they had. The way it looked to him it was chickens. Sylvia Ayers never heard anything the night of October 15th except some dogs barking. There was a vacant lot between her house and Maggie Clark's house. Howard Penix was over at Maggie Clark's house. Anna Fondaw lived on Oak Street. The back of Alice Hutchison's lot is back of her house. Earl Bowman lived next door. She saw Elmer Jennings and Howard Penix as they came back from the direction of her brother-in-law's. That was the opposite direction from Alice Hutchison's place. They' had something in their hands, but she did not know what it was, but thought it was chickens. Maggie Clark lived on Oak street. Earl Bowman's and Mrs. Fondaw's houses are along there. She did not know anything about the chickens until the next morning when Howard Penix and Elmer Jennings came to her house, brought some chickens and dressed them. She had been asleep and Elmer Jennings bit her on the jaw and woke her up. The chickens were Domineckers and white. There looked to be five or six, she did *Page 770 not, remember. The boys fried two of them, left another to be fried, and the balance they carried away in a basket. Estelle Ayers remembered the night Alice Hutchison lost some chickens. She saw Howard Penix and Elmer Jennings in the fore part of the night. They passed the house and had something in their hands. There was no light; just the moon shining, and she did not know what they had.
To sustain the charge it was necessary for the commonwealth to prove beyond a reasonable doubt that chickens belonging to Alice Hutchison were stolen, and that appellant was one of the perpetrators of the crime. Hunt v. Commonwealth, 258 Ky. 18,79 S.W.2d 357. Alice Hutchison did not miss her chickens until between 7 and 8 o'clock the next morning. She thought it was October 15th. No witness placed appellant closer to the property of Alice Hutchison than Oak street. When he was seen he was coming with something in his hands from the opposite direction. No witness identified the chickens that appellant and Elmer Jennings were cleaning at Maggie Clark's as belonging to Alice Hutchison. Maggie Clark described them as "Domineckers and white," whereas the chickens that disappeared from Alice Hutchison's hen house were "three Domineckers, one white hen, and one Rhode Island red and one rooster." Appellant and his companion made no attempt to conceal the chickens that they were carrying, but carried them openly in their hands. In its final analysis, all that the evidence showed is that Alice Hutchison lost some chickens, and that appellant and his companion were in the neighborhood with some chickens not answering the exact decsription of those lost by Alice Hutchison. We think the evidence was insufficient to take the case to the jury or to sustain the verdict.
This conclusion makes it unnecessary to determine whether the court erred in not appointing an attorney to represent appellant.
Judgment reversed and cause remanded for a new trial consistent with this opinion. *Page 771