171 Ky. 227 | Ky. Ct. App. | 1916
Opinion- op the Court by
Affirming.
At the March, 3916, term, of the Perry circuit court, the grand jury returned two indictments, Nos. 60 and 61, respectively, against appellant, charging her with having in her possession spirituous, vinous and malt liquors for the purpose of sale in local option territory as denounced by subsection 2 of section 2557b of the Kentucky Statutes.
She was tried and convicted under both of these indictments at the May term of court. The evidence for the Commonwealth in both cases was the same. Pier motion and grounds for a new trial having been overruled, she is appealing in both cases, which, by agreement, were heard together here.
The Commonwealth introduced only one witness, G. M. Lawson, agent of the Adams Express Company at Hazard, who testified in substance that he delivered to the defendant from April 5th to October 6th, 1915, thirteen gallons of whiskey. At the conclusion of the testimony for the Commonwealth, the defendant entered a motion for a directed verdict in her behalf, which was overruled by the court, and to which she excepted.
The defendant testifying for herself stated in substance that she had received some whiskey from the express company, but did not think she had received as much as stated by the Commonwealth’s witness; that she ordered the whiskey for her personal use; did not have it for the purpose of sale; did not intend to sell it and did not sell any of same. She stated that she gave her mother some of each shipment, and that the balance
1. The first question raised here is that there was not sufficient evidence to warrant a conviction, but to¡ this we cannot agree. The conclusions of this court with the reasons therefor on substantially the same evidence, are clearly and fully stated in Cornett v. Commonwealth, 170 Ky. 717, and it is not necessary to restate same here. The fact that the defendant in the Cornett case did not deny that he had the whiskey in his possession for sale, and that the defendant here did so, in no wise affects the reasons controlling the Cornett decision, and cannot alter the conclusions reached therein.
2. The second objection urged by defendant is that it was error upon the part of the trial court to exclude from the consideration of the jury the fact that the records of the express office show that -each shipment of whiskey to the defendant was endorsed for “personal use.” Appellant bases this contention upon the fact that by subsection 3 of section 2569b of the Kentucky Statutes, transportation companies are required to keep a separate book at each station in local option territory and enter therein a truthful statement of the amount and kind of liquor received, name and address of the consignor and of the consignee,- and the purpose for which the said liquor is to be used as stated on the out-. side of the package containing same, -the date when received, the date when delivered and by whom and to whom delivered; and providing further that “such book shall constitute prima facie evidence as to the facts therein stated, and be admissible as evidence in any court in this State.”
Appellant is mistaken, however, in assuming that the legislature intended by the above provision to make
3. Upon the trial of the second indictment, No. 61, at the- conclusion of the Commonwealth’s, evidence, and after the court had excluded the evidence that the whiskey was marked “for personal use,” defendant moved to exclude all of plaintiff’s testimony, no doubt upon the theory that if the record book was not prima facie evidence of the endorsement “for personal use,” it was not evidence for any purpose. But, as a matter of fact, the book was not introduced as evidence by the Commonwealth at all. The agent testified that defendant received from him certain shipments of whiskey and by reference to the book stated the quantities she had received and upon what dates. This evidence was clearly competent, without regard to the above statute, under the ordinary rules of evidence.
4. It is most earnestly insisted by defendant that she was entitled to a peremptory instruction upon the 'second trial'because the conviction was upon the same •evidence as the former conviction. The evidence was the same, and had she entered a plea of former conviction, as under section' 164-' of the Code she had the right tó do, her plea would have been followed. In
."Wherefore, the judgments in both cases are affirmed.'