Caldwell v. Commonwealth

PER CURIAM. Appellant was convicted on the charge of shooting and wounding with intent to kill and sentenced to three years’ confinement in the penitentiary. Appellant assigns as error the court’s failure to direct a verdict of acquittal. The only evidence produced by the Commonwealth consisted of out-of-court statements of three witnesses made to Detective Stogs-hill. The statements were introduced as substantive evidence after the three witnesses denied on the witness stand having made the statements. Deputy Sheriff Oscar Brown, while on call looking for “a load of drunks,” was shot in the arm by shotgun pellets. Rufus Harris, another deputy sheriff, was with Brown but neither saw who fired the shot. The only evidence connecting appellant with the shooting was the out-of-court statements made by Willard Creech, Everett Allen and Rickey Allen, friends of appellant. When they were called by the Commonwealth to testify they denied making the statements. The Commonwealth then presented Detective Stogshill and produced written statements of the three witnesses which inculpated appellant. [534] The statements were admissible as substantive evidence under the rule announced by Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). Appellant insists, however, that Jett is not authority for the proposition that a person may be convicted upon evidence consisting solely of out-of-court statements. We do not agree. Such evidence should be considered as any other competent evidence. Its sufficiency to support a conviction should be determined under the same criterion prescribed in Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (decided today). The judgment is affirmed. All concur.