196 Ky. 277 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
The appellant, Ellis Craft, following his indictment in the Floyd circuit court for unlawfully transporting spirituous liquor, was tried and convicted of the offense in that court and his punishment fixed by verdict of the jury and judgment of the court -at a fine of $175.00, and confinement of thirty days in jail. He insists upon this appeal that he was convicted under an indictment that was fatally defective and upon incompetent evidence; ánd that he should have been acquitted by a directed verdict.
The objection respecting the alleged insufficiency of the indictment raised by the appellant’s demurrer to same, was that in attempting to negative the exceptions contained in the statute that permit the transporting of such liquor for “sacramental, medicinal, scientific or mechanical purposes,” the indictment omitted the word “purposes.” The objection is highly technical and, we may add, trivial. The word omitted is so well known to be a part of the exception in the statute and its omission so palpably a mistake of the draftsman of the indictment, that the appellant could not have been misled by its absence therefrom. He could not have failed to understand from the allegations of the indictment the offense with which he was thereby charged, or that if the .•liquor was transported by him for any of the uses mentioned in the exception, proof thereof by him would re-
The appellant’s second complaint presents a more serious' question. It appears from the testimony of the officer and some of the posse by whom he was arrested that the “moonshine” whiskey found in his possession was concealed in a suit ease owned by him and discovered by a search made of the suit case by them. The witnesses, or some of them, also testified that the search of the suit case resulting in the discovery of the whiskey was made by virtue of a -search warrant issued for that purpose by Judge Hill, county judge of Floyd county, a few minutes before the discovery of the whiskey in the suit case. The search warrant was not produced or put in evidence on the appellant’s trial, though the witnesses were allowed to freely testify as to when it was issued and as to its contents. The appellant specifically objected to all evidence regarding the search warrant and also as to the discovery and -seizure of the whiskey thereunder; but all these objections were overruled by the court, to each of which rulings the appellant. duly excepted. Bpp Lafferty, town marshal of Prestonsburg, by whom the search warrant was procured and executed, testified that he returned it to the county judge. The only attempt that was made to account for the absence of the search warrant or the failure of the’ Commonwealth to introduce it in evidence, was by the following last and leading question put to Epp Lafferty by the Commonwealth’s attorney on Lafferty’s re-direct examination:
“I believe you tell the jury you and Judge Hill made a search for this warrant and were n'ot able to find it?” In answer to which the witness said: “Yes, .sir.”
The incompetency of all the foregoing evidence is manifest, the reasons for so declaring it being fully set forth in the following excerpt quoted from the opinion in the recent case of Cline v. Commonwealth; 195 Ky. 806: “As it appears from the evidence that the discovery and seizure of the whiskey in appellant’s possession was attempted to be justified by the officer’s possession of a search warrant,-the validity of which, though objected to and attacked, was not established by the introduction of the warrant itself or proof of its loss and contents, this
The judicial officer issuing a search warrant becomes, after such warrant has been executed and returned to him, its legal custodian and charged with the duty of filing and preserving it as other like documents and. records of his office are required to be kept by him. He, therefore, is primarily the person to be called on to testify as to the authenticity or genuineness of such writs as may have been issued by or returned to him or to account for their absence fr'om his custody, and if lost, what effort has been made to ascertain that fact or to find or restore them. That official documents or writs do not appear of record, .or were once of record and lost, must be proved by the sworn testimony of the person, who is the legal custodian of the document, writ or other record; such custodian, if accessible, being the only competent witness in such case. But if not accessible the loss of the document, writ or other record may be established by the testimony of any other competent person. 17 Cyc. 499; 25 Am. & Eng. Ency. Law, 166-9; Nuttall’s Admr. v. Brannen’s Exr. 5 Bush, 11; 1 Starkie, 350-1. When the loss of a record or other legal document is once established and no authenticated copy thereof is to be had, its contents may be proved by parol evidence.
As the county judge who had issued the search warrant under which the appellant’s suit case was searched, and became its legal custodian when returned, was not shown to have been inaccessible when the appellant’s trial took place, but was, as it appears, then in Prestonsburg, he instead of Lafferty, the town marshal, should
In other words, there was no competent evidence conducing to prove the appellant’s .guilt. Therefore the refusal of the trial court to peremptorily instruct the jury to acquit the appellant, as requested by him at the conclusion of the evidence, was reversible error. For the reasons indicated the judgment is reversed for a new trial and such other proceedings as may not be inconsistent with the opinion.