163 Ky. 96 | Ky. Ct. App. | 1915
Opinion op the Court by
Affirming.
Defendant, Bert Franks, was convicted of the crime of feloniously breaking into a warehouse with intention to steal therefrom, and given a sentence of from two to four years in the State penitentiary. Pie appeals.
According to the evidence for the Commonwealth, the frame building owned by the Old Tub Fowler Distilling Company, and located on the corner of Upper Mill and Water Streets, in Falmouth, was broken into and a quantity of whiskey taken from a barrel. In the room with tbr barrel were some jugs. One of the jugs held five gallons and had a peculiar mark on it. The other jugs held three gallons. The breaking occurred some time between Thursday night and early Friday morning. Thomas Teegarden saw two men in front of the distillery just before daylight on Friday morning. IPe was unable to identify the men, but one of them was about the size of the defendant. Mrs. Lydia Wedding saw two men on the same morning going towards the railroad with something in their hands which “carried kinder heavy.” Mrs. Lou McCarty saw the defendant and Hugh Courtney at her house early Friday morning. They had two baskets with them, and informed her that they contained whiskey. She told them to take the baskets out; that she might be arrested. They told her to keep her mouth shut and nobody would know anything about it. They also said that if the fellow who saw them followed them over there they would kill him. They called him Teegarden. On the Sunday morning following Tom Bell saw the defendant and Hugh Courtney at Coleman Springs. He was looking for Lou McCarty and also for some whiskey. He and McCarty joined defendant and Courtney on the creek bank. They asked for whiskey, and defendant and Courtney produced three pint bottles. Witness gave $1.50 to Lou McCarty, who then handed it over to de
The defendant denied being at Lou McCarty’s house early Friday morning. He also denied having anything to do with breaking into the warehouse. He further swore that he went home Thursday evening between six and seven o’clock, and remained there until seven-thirty, the next morning. His father and mother, who slept in the same room with him, corroborate this, statement. Fred Parker, who joined the party Sunday morning, states that he did not see the whiskey. "When he got there “they had done the work.”
It is next insisted that the court erred in permitting the Commonwealth to prove that defendant sold whiskey to Tom Bell. It is argued that evidence of a violation of the local option law is not competent to prove the offense of breaking into a warehouse with intent to steal therefrom. This evidence was not admitted for the purpose of showing that defendant was probably guilty of the offense with which he was charged because he was
Complaint is also made of the admission of Bell’s testimony to the effect that he identified the whiskey sold him by the defendant as being of the Old Tub' Fowler brand. It is insisted that his twenty years’ experience in drinking different brands of whiskey is not sufficient to qualify him as an expert. It may be doubted if the witness was qualified to give his opinion on the question. However, we do not regard the admission of this evidence as prejudicial, in view of the many other circumstances tending to establish defendant’s guilt.
Judgment affirmed.