Robert Daniels was convicted of storehouse breaking and sentenced to three years in prison. He seeks a reversal on the ground that the court allowed evidence to be introduced which was prejudicial to his substantial rights.
Robert Daniels and Henry Eichler were jointly indicted on three separate offenses of breaking and entering storehouses. Eichler pleaded guilty to all three indictments. Daniels pleaded not guilty to the three indictments. The Commonwealth elected to try Daniels for the breaking and entering of the drugstore of Loretta Widrig.
The evidence discloses that on August 3, 1953, between the hours of 3:30 and 4:30 a.m., three drugstores in the city of Newport were broken into by two men who were driving a green Oldsmobile bearing Kentucky license number 124479. The first store broken into was owned by Elmer Glazier, the second by Walter Froeba and the third by Loretta Widrig. Fifteen minutes after the breaking of Loretta Widrig's drugstore, the Newport police arrested Robert Daniels and Henry Eichler in a green Oldsmobile bearing Kentucky license number 124479. A search of the automobile revealed two decks of playing cards which bore a marking of Loretta Widrig's store. A search of Henry Eichler's person revealed some old coins with distinct markings upon them, which Loretta Widrig identified as coming from her cash register. A search of Daniels' person revealed $80 in bills and a pair of gloves.
Daniels' testimony is to the effect that he and his wife went to a tavern and drank intoxicating beverages until the tavern closed. After the tavern closed Daniels took his wife home, but feeling the need of a drink he returned to the tavern and tried to get in. Upon being refused admittance, he drove down Eighth Street and picked up Eichler. It was then about 3:30 a.m. Daniels denied that he was at Widrig's drugstore, but said he knew that Eichler broke into it. Daniels' explanation of how the playing cards got in his car was that he bought them at the Widrig drugstore. He further said that, due to his drunken condition, he remembered very little after picking up Eichler until the police arrested him at about 4:45 a.m.
The Commonwealth introduced Elmer Glazier, owner of the Glazier Drugstore, who said that he was awakened by the burglar alarm. When he went to the window he saw two men drive away from the drugstore in a green Oldsmobile. William Hook said that he was standing across the street in the door of a garage and saw two men drive away from the Glazier Drugstore in a green Oldsmobile bearing a Kentucky license number 124479. He said also that he called the police and gave them the color of the car and the license number. Pat Ciafardini, a detective on the Newport police force, investigated the break ins of Glazier's and Froeba's drugstores. He said he received information that two men, driving a green Oldsmobile bearing Kentucky license number 124479, were seen leaving the vicinity of each drugstore.
The Commonwealth next introduced William Schoepf, a Newport detective, who gave the following testimony:
"Q. Say what information you received, if any, with regard to an automobile used by the person or persons who broke the door.
"Mr. Jolly: I object; it would be hearsay.
"The Court: I think that he can say generally he received information that a person, or more than one person, attempted to break in.
"A. We received information that it was the same Oldsmobile with Campbell County license 124479. We also received information it was Bob Daniels.
"Mr. Jolly: I object to that.
"The Court: That seems to violate the hearsay rule unless somebody was on the scene to identify one of the occupants as the defendant. ...