198 Ky. 663 | Ky. Ct. App. | 1923
Opinion op the Court by
Affirming.
Appellant Brown was convicted in the Calloway circuit court of tire offense of transporting intoxicating liquors, and his punishment fixed at a fine and jail sentence, from which he appeals.
As grounds for a reversal of the judgment he insists (1) that the demurrer to the indictment should have been sustained; (2) the reasonable'doubt instruction was unfavorable to him; (3) a peremptory instruction should have been given in his favor.
The indictment accused appellant Brown of the offense of “unlawfully transporting spirituous liquors,” and he insists that this is too indefinite, and further that it is no offense to transport spirituous liquors unless they are intoxicating. The term “spirituous liquors” is so well understood by people generally as synonymous with intoxicating liquors that the indictment could hardly have been more definite and certain by the employment of other words. The specifications of the indictment also employ the words “spirituous liquors,” which for the same reason is sufficient. The trial court properly overruled the demurrer to the indictment.
In the instruction to the jury as to reasonable doubt the court said:
‘ ‘ The law presumes the defendant to be innocent until proven guilty, and if you have reasonable doubt of his having been so proven you will find Mm not guilty.”
While this instruction fairly presents the law, it is more favorable to the defendant than he was entitled to have. This instruction should always follow in substance
“If there be a reasonable doubt of the defendant being proven to be guilty, he is entitled to an acquittal.”
The court should not tell the jury that the law presumes the innocence of a defendant. Mickey v. Commonwealth, 9th Bush 593; Minniard v. Commonwealth, 158 Ky. 210; Clary v. Commonwealth, 163 Ky. 48; Commonwealth v. Stites, 190 Ky. 402.
Appellant’s principal insistence is that the evidence was insufficient to carry the case to the jury and to support the verdict. Appellant was in Murray at night and desiring to go to Hazel, his home, he engaged Richardson, ■a taxi driver, to take him. Richardson came with his taxi to a certain meat shop where appellant was to meet him; at that time there was no liquor in the car; appellant boarded the car and said, “Let’s go.” They started for Hazel. After traveling two or three miles appellant asked the driver to stop, which he did, and appellant alighted and went a short distance from the car and soon returned. Whether appellant put anything into the car at that time or not the driver was unable to say, for it was dark; at that time appellant was partially drunk. He soon went to sleep, sitting in the front seat with the driver. Either after they arrived ait Hazel, where appellant resided, or before that time, Richardson, the driver, learned that there was whiskey in the car. The driver tried to awaken appellant and remove him from the car when they arrived at Hazel but was unable to do so. After making several futile efforts, he turned his car and started back in the direction of Murray; after going some distance he called up his employer in Murray and told him to come out and get him; that appellant was drunk in the car and asleep and he could not unload him, and that there was liquor in the car. With this information his employer went to the sheriff’s office and induced that official and one or more of his deputies to go with him. When they arrived at the car on the road some miles from Murray, they found appellant Brown asleep in the ear. In the rear of the car was a sack containing a jug of whiskey, and on the floor of the car were several fruit jars filled with whiskey. The sheriff arrested Brown and confiscated the liquor. At the trial appellant denied any knowledge of the liquor. The witness, Richardson, however, testified that there was no liquor in the car at the time he started with appellant to Hazel, and that he did
Judgment affirmed.
