## Facts

- Don Kinder and his father, Hayes Kinder, were jointly indicted for grand larceny of personal property valued at about $425 belonging to Bevander Coal Corporation; Don was tried separately.
- The company’s vice-president identified part of the missing property, including a radiator, in a load of scrap on a truck at a service station; the truck was operated by the Kinders.
- Hayes Kinder claimed he bought the radiator from an unidentified boy near Hackney’s Creek but could not provide the boy’s name or description.
- Police stopped the truck shortly after it left the service station, but the stolen property was no longer on it.
- Officers later found items including the radiator hidden under a shack about 200 feet from the service station.
- At trial, officers testified that, while returning a small child who had been riding in the truck, they were led to the radiator’s location; the court did not permit the officers to repeat what the child said.
- The child was identified as Danny Hackney, age five, a relative who had been in the truck; he did not testify at trial.

## Issues

1. Whether admitting officer testimony that a child pointed out the location of the radiator constituted inadmissible hearsay and reversible error.
2. Whether the circumstantial evidence was sufficient to support a grand larceny conviction.
3. Whether the trial court erred by refusing additional defense-requested jury instructions.

## Decision

- The Kentucky Court of Appeals affirmed the conviction and one-year reformatory sentence.
- The court held the challenged testimony was not reversible hearsay because the officers were not allowed to recount the child’s statements and the testimony was limited to the child’s conduct and the officers’ subsequent actions.
- The court held the evidence was sufficient where stolen property was observed on the Kinders’ truck, disappeared soon after, and was found hidden nearby shortly thereafter.
- The court held the instructions were adequate because Kinder’s position was a general denial, not a defense requiring specialized instructions.

## Legal Principles

- Testimony describing an out-of-court actor’s conduct (e.g., pointing to a location) may be admissible when the witness does not relay the actor’s statements and the evidence is offered to explain police actions rather than to prove the truth of an out-of-court assertion.
- Circumstantial evidence, including possession or control of recently stolen property coupled with suspicious circumstances (such as quick removal and concealment), can support a larceny conviction.
- When the defense is a traverse of the charge (a general denial), the trial court need not give additional theory instructions beyond those adequately stating the elements, presumption of innocence, and burden of proof; more specific instructions are typically required only for defenses that admit the act and assert a legal justification or excuse.

## Conclusion

The court affirmed Kinder’s grand larceny conviction, finding no reversible evidentiary error in limited testimony that a child directed officers to the hidden property, concluding the circumstantial proof permitted the jury to infer guilt, and holding the standard instructions were sufficient given a general denial defense.


Kinder v. Commonwealth, 306 S.W.2d 265 (Ky. Ct. App. 1957)