196 Ky. 620 | Ky. Ct. App. | 1922
Opinion op the Court by
-Affirming.
This is an appeal from a judgment of the court below entered upon the verdict of a jury by which the appellant was found guilty of the offense of unlawfully keeping for sale spirituous liquors, and his punishment fixed at a fine of $300.00, and confinement of sixty days in jail. The-indictment properly charged the offense and alleged that the sale intended of the liquor was not for any of the lawful purposes excepted by the statute from its provisions.-
The grounds urged by the appellant in the court below for a new trial, and also insisted upon in this court for the reversal of the judgment of conviction, were and are error of the trial court: (1) In admitting incompetent evidence; (2) in refusing certain instructions offered by the appellant. That a clear understanding of these contentions may be arrived at, consideration of the evidence heard on the trial will be necessary. The witnesses for the Commonwealth were Monroe Miller, jailer, and Roscoe McKinney, a deputy sheriff, of Rockcastle county,, who substantially testified that having received information that “bootleggers” were keeping for sale whiskey
Manifestly, this evidence was sufficient to establish the appellant’s possession and control, if not his actual ownership of both jars of the whiskey; and in either event its attempted concealment by him in the manner shown, together with the circumstances attending his surreptitious attempt to remove a part of it, strongly conduce to prove that his purpose was to sell the whole of the whiskey and that it was kept by him for that purpose. In brief the method employed by the appellant with respect to the whiskey in question, is such as would naturally be employed by the modern “bootlegger” in engaging in the unlawful traffic of that unlawful product. It is, however, insisted for the appellant that the whole of the Commonwealth’s evidence is incompetent and should have been excluded when objected to by him, because of the failure of the Commonwealth to prove
On the facts of this case this contention cannot prevail. While Miller, the jailer, testified that he had a search warrant at the time he and the deputy sheriff discovered the whiskey in question, his possession of the writ was unnecessary, for the appellant by his acts in assuming the ownership and custody of the whiskey and actually taking in hand a part of it with intent to remove it from where it had been deposited, all done in the presence of the officers and after their discovery of the whiskey, in fact and in contemplation of law committed in their presence the offense for which he was indicted and convicted. This being true the officers had a right to arrest the appellant without a warrant, hence neither the introduction in evidence of the search warrant nor affidavits upon which it was issued was required. Moreover, as it does not appear from the evidence that the appellant owned or was an occupant by tenancy of the land where the whiskey was found, or that he had permission from the owner to use it for any purpose, it is not perceived that he can complain of the seizure of the whiskey without a, search warrant. In making use of the land for storing or concealing whiskey of which he was the owner or custodian, the appellant was a mere trespasser; therefore, he had no greater right to use the land for the purpose to which he applied it, than had the officers of the law to enter it without a search warrant. In brief for violátions of the liquor laws of this' state committed in their presence, its law officers may make arrests and seize intoxicating liquors without a search warrant. Bowling v. Commonwealth, 193 Ky. 642; Turner v. Commonwealth, 191 Ky. 825; Commonwealth v. Riley, 192 Ky. 153.
Our conclusion respecting the appellant’s second contention, which urges his complaint of the trial court’s refusal of the instructions A, B, and C, offered by 'him, as claimed, under authority of the opinion in Whitehead v. Comth., 192 Ky. 428, is, that the rejection of' those instructions was not error. Instructions A and C would have submitted to the jury, predicated upon their belief
By instruction B, the jury would have been told that if they believed from the evidence that the whiskey belonged to one John Cromer, and not to the appellant, they should acquit the latter.
Obviously, instructions A and C were not authorized by anything said in Whitehead v. Commth, supra. The facts in the Whitehead case are wholly dissimilar to those of the case at bar. In that case it appeared from the uncontradicted evidence that Whitehead, who was afflicted with a weak heart requiring the frequent taking of whiskey as a stimulant, upon the advice of his physician purchased some whiskey of bootleggers across the Ohio river, which he kept in jars under the bed in a room of his dwelling house, solely for his necessary personal use. In view of this state of facts, we held that the trial court should have given an instruction substantially telling the jury, that although the defendant had the whiskey in a house in his possession, if they believed from the evidence that the house was occupied by him only as a dwelling house and the whiskey was kept therein solely, for his personal consumption, and not for sale, they should find him not guilty.
It is manifest that such an instruction can have no application to the facts of the. instant case which show that the whiskey was never in a dwelling house occupied by the appellant, but was kept in a secluded field of which he was neither the owner nor an occupant, and there attempted to be concealed. These facts and the secrecy with which he went to where it was deposited and also with which he attempted to remove a part of it,' together with other circumstances attending his control of .it authorized the belief on the part of the jury that it was not kept for his personal use, but for sale. Whiskey cannot legally be so'kept for one’s personal consumption; and the only inference legally deducible from the foregoing-facts and circumstances is, that the whiskey in question was unlawfully kept and intended for sale by the appellant. And even if it was procured by him for personal consumption, its transportation to his home for that pur
We also think it clear that instruction B was properly refused; it was not material whether the whiskey deposited in the field was owned by the appellant or Cromer. As the evidence conclusively established the appellant’s possession of it was unlawful, that fact authorized his conviction of the offense charged. His testimony and that of his friend that they saw Cromer place the whiskey where it was found, and that appellant, without Cromer’s knowledge, appropriated a part of it, if accepted as true, did not establish the former’s innocence of the offense charged, but merely amounted to proof of his theft of the whiskey, which he unlawfully took in possession.
No legal cause being shown for disturbing the verdict the judgment is affirmed.
