Caudill v. Commonwealth

198 Ky. 695 | Ky. Ct. App. | 1923

Opinion op the Court by

Judge Thomas

Affirming.

Appellants, Caudill and McLemore, were convicted in the Simpson circuit court of. the offense of unlawfully possessing spirituous, vinous and intoxicating liquors for other than permitted purposes, and they appeal from the judgment and through their counsel urge two errors as grounds for reversing it, which are (1), incompetent and irrelevant evidence introduced by the Commonwealth over their objections, and (2), erroneous instructions. The alleged erroneous evidence complained of in ground (1) consisted in (a), the insufficiency of the affidavit and the search warrant issued thereon, and (b), incompetent testimony relative to the character and reputation of defendants.

It is admitted, and indeed could not be denied, that if the evidence relating to the possession was competent it proved the offense beyond all reasonable doubt, since under the search made on the premises of Caudill and upon which his co-defendant resided as a tenant, resulted in the discovery of ten gallons of moonshine whiskey in the custody of defendants and three hundred gallons of wine in one of the barns on the premises; and the only question concerning this objection is whether the affidavit and warrant issued thereon complied with the legal requirements as laid down in prior opinions of this and other courts. The affidavit was made by the sheriff of the county and in it he stated that “at the house or on the premises or farm where C. H. Caudill lives, in Simpson county, Kentucky, on the L. & N. Pike, about two or three miles south of Franklin, intoxicating liquors are being sold, or manufactured, or disposed of, or illegally possessed in violation of law.” The warrant directed the officer to whom it was issued to search the residence ‘ ‘ and outbuildings and premises adjacent thereto” and the farm of the defendant Caudill whereon they were located and the contents found therein and described the location of the farm with reasonable certainty. Our constitutional provision relating to searches and seizures is section 10 of that instrument and it requires only a reasonable description of the property or premises to be searched, and that facts shall be stated sufficient to create in in the mind of the officer issuing the warrant “probable cause” to believe that the offense was committed or that the facts sought to. be discovered existed. We held in the recent case of Mattingly v. Commonwealth, 197 Ky. 583, wherein the sufficiency of such an affidavit was discussed and determined, that if it stated the existence of the facts concerning which the search related it would be sufficient. Upon that point we therein said: “Of course, all the courts hold that if the affiant states, as a fact, that the person referred to has committed a named offense, or that the place or places to be searched contain the evidence sought to be obtained, it will be sufficient.” The cases and authorities referred to in that opinion fully support that excerpt and we deem it -unnecessary to further elaborate the point. The affidavit in this case stated as a fact that upon the premises and in the house of the defendant, Caudill, intoxicating liquors were sold or that they were manufactured or disposed of or that in or upon such property intoxicating liquors were disposed of, we are clearly of the opinion that the affidavit was sufficient to create “probable cause” in the minds of the officer who issued the warrant and that he was therefore authorized to do so. We are likewise convinced that the property and premises of the defendant were sufficiently described in the warrant.

Concerning objection (b), to the evidence complained of therein some of the witnesses who testified to the reputation of the defendants as permitted under the 1922 Act, commonly known as the “Rash-Uullion Act,” and after the taking effect of which the offense was committed, stated .that the reputation was bad and had been continuously so since witness became acquainted with defendant and such acquaintance was shown to extend back a number of years prior to the commission of the offense. It is argued against the competency of that evidence that it should so nearly relate to the time of the commission of the offense as to have some bearing upon the probability, of defendants’ guilt and that it was error to permit the witnesses to state what the reputation of defendants was at a distant period in the past. If the proven reputation existed only at that distant period followed by a reformation the contention would no doubt be correct, but the fact that it existed at. the time of the alleged offense and at the time of the trial and had done so continuously through a number of years will not render it incompetent. The statute makes bad reputation in such cases competent evidence and the length of time which the defendant has consumed in building up that reputation will not render the fact of its existence incompetent. It is, therefore, quite clear to us that this objection is without merit.

It is claimed under contention (2), that instruction number 1, given by the Court, authorized a conviction of both defendants if the jury believed that either of them was guilty, but we do not so interpret it, but if it was susceptible to such a construction, instruction number 2, also given by the court, corrected that error for it authorized an acquittal if the jury entertained a reasonable doubt “as to the defendants or either of them having been proven guilty. ’ ’ Besides, the evidence for the Commonwealth, which we have held was competent, left no doubt of the guilt of each defendant, and if the instructions as a whole had contained a technical error it would-be impossible to hold that it operated to the prejudice of any of the substantial rights of either of them.

The record as a whole convinces us that the defendants were guilty beyond a reasonable doubt, and finding-no error prejudicial to their substantial rights, the judgment is affirmed.