
    Davis v. Commonwealth.
    (Decided September 24, 1913).
    Appeal from Fayette Circuit Court.
    1. Verdict — Verdict in Criminal Case Will Not Be Disturbed Unless 'Palpably Against Evidence. — The' court will not disturb a verdict in a criminal case unless palpably against the evidence, and under this rule, a verdict finding the defendant guilty of stealing money will not be disturbed when based on circumstances on which the conclusion of the jury was not palpably unwarranted.
    2. Larceny — Evidence of — Competency.—When the defendant has in his possession soon after the theft, a large sum of money, when be bad none before, this is a comp.tent fact, though the money he so had is not identified with that stolen.
    FRED FARRIS for appellant.
    JAMBS GARNETT, Attorney General D. O. MYATT, Assistant Attorney General, for appellee.
   Opinion op the Court by

Chiep Justice Hobson:—

Affirming.

Joe Davis was indicted in the Fayette Circuit Court for grand larceny, in stealing from Harry Hill $100; and having been found guilty, he appeals from the judgment entered on the verdict, insisting that the evidence is insufficient to warrant a conviction.

The facts shown by the evidence are about these: Harry Hill was 75 years old. He was a pensioner and was paid on Saturday, June 1, $117, $100 of this being in $10 bills. Hill lived in a house which consisted of three rooms, one behind the other. Hill occupied the center room, Davis the room back of him, and a man named Coleman the front room. The bolt on the door between Hill’s room and Coleman’s room was on Hill’s side of the door; the bolt on the door between Hill’s room and Davis’ was on Davis’ side of the door. On Sunday evening Hill was in his room alone, and placed his money in a pocket of his vest which he hung up on the wall. It began to rain so he could not go out, and he fell asleep. Both doors were closed. "When he waked up his money was gone and the door between him and Coleman was still bolted, but the door between his room and Davis, was not fastened. Davis owed Hill $4.50 for room rent. Hill asked Davis the next morning for his rent. Davis gave him one dollar and said that he had only sixty cents left, and he was going to buy him something to eat with that; that this was all the money he had. On that day, Davis deposited with another to; hold for him $60 in ten dollar bills, saying that he had made the money on a horse race. On that evening he was treating another and had more than $10 in silver. On that night Hill heard him tell his wife that he had got some money and was going away. The next morning Hill saw him with a new pair of pants on and had him arrested. Davis told the detective who arrested him that he won the $60 on a horse race, but he did not know the name of the horse; that the race was run at Baltimore. Davis testified that fie fiad $35 wfiicfi fie fiad made and saved; tfiat fie pnt this in tfie hands of a man named Williams to fiet on tfie Derby at Louisville, and tfiat Williams paid him $60 as fiis part of what they had after tfie betting. Williams was not produced at tfie trial, and no effort appears to have been made to obtain fiis testimony. Davis, admits tfiat fie did not sleep at home Sunday night, and was not there when Hill discovered tfie loss of fiis money. His account of how fie came by tfie $60 and tfie pair of pants is unsatisfactory, and we cannot say tfiat the conclusion of tfie jury was unwarranted, although fie proved by a number of witnesses tfiat fie0was of good character. Tfie parties were all negroes, and while there was some conflict in tfie testimony, tfie fact tfiat tfie money was stolen is indubitably established. Davis’ conduct on Monday was tfiat of a man who had suddenly come into tfie possession of money, and if fiis evidence is true, fie fiad fiad tfie $60 for some days.

While it is true tfie six ten dollar bills wfiicfi Davis gave to another to keep for him were not identified in any way with tfie ten dollar bills wfiicfi Hill had lost, tfie fact tfiat Davis had tfiis much money on Monday, when fie had not tfie money Monday morning to pay fiis rent, was a competent circumstance to show tfiat fie had gotten Hill’s money. Tfie fact being established tfiat Hill’s money had been stolen, tfie question to be determined was, who stole it. And tfiis proof was competent on that question. When money has been stolen, tfie State may identify tfie person who stole it by circumstantial-evidence, and tfie fact tfiat a person has soon afterwards an unusual quantity of money, wfiicfi fie did not have before, is, when coupled with other circumstances, convincing evidence, although tfie identity of tfie money with that stolen is not shown. Tfie case does not turn on tfie identity of tfie six ten dollar bills with, tfie ten ten dollar bills, which were stolen from Hill. Tfie question to be. determined being, who stole Hill’s ten ten dollar bills, tfie jury fiad a right to take into consideration Davis’ opportunity to get tfie money, fiis leaving fiis house in the night and spending tfie night elsewhere, his being without money theretofore, fiis having money tfie next day, fiis unusual spending of money as well as fiis unsatisfactory explanation of these facts.

Judgment affirmed. •  