200 Ky. 264 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
The appellant, Jason Hatfield, was indicted and convicted in the McCreary circuit court for the offense of transporting spirituous, vinous, malt or intoxicating liquors contrary to law, and from the judgment pronounced upon the verdict assessing against him a fine of
The only fact relied on in support of ground (1), is that the indictment, after properly charging the unlawful transportation, contained the further allegation that defendant was convicted for the same character of offense prior to the time of the commission of the one for which he was indicted, the purpose of which was to visit upon him the increased punishment for such subsequent offense, and it is insisted that the prior offense was committed under the 1920 act instead of the 1922 act, under which the defendant was indicted, and for that reason the “habitual criminal” portion of section 4, chapter 33, of the 1922 Acts, which provides for the increased punishment for the second offense should not apply. If, however, we should admit the soundness of the contention, it has no relevancy in this case, since the charge of the first conviction contained in the indictment was entirely ignored upon the trial, there being no evidence introduced upon it nor any instruction submitting it and defendant was given the minimum punishment for the violation with which he was charged.
Ground (2), is equally without merit. The chief prosecuting witness was the sheriff of the county, and he testified that he was endeavoring to arrest defendant for disorderly conduct committed in the presence of the witness, and that defendant had in his possession, besides a pistol, a quart fruit jar in one hip pocket and a pint bottle in the other one, each of which contained some kind of liquid, and that defendant threw it or a part of it under a car as he was being pursued by the officer; that a deputy sheriff recovered the package thrown under the car "within a minute or so afterwards and it contained whiskey. The deputy sheriff corroborated that testimony in all of its material parts. Another witness testified that he saw defendant some thirty minutes or more after-wards and he then had a quart of moonshine- whiskey in his possession, which was contained in a fruit jar, but the court, upon objection by defendant’s counsel, excluded that testimony from the consideration of the jury. The three witnesses referred to were the only ones introduced
But it is insisted that the evidence of the sheriff and that of his deputy was incompetent because neither of them had a warrant for the arrest of defendant, nor one to.search his person, which contention ignores the fact that a peace officer, under the provisions of subsection 2 of .section 36 of the Criminal Code, may make an arrest “when a public offense is committed in his presence,” and we have frequently held that evidence found or discovered by an officer or other person in making or in an effort to make a legally authorized arrest is competent without the possession of a search warrant by the officer or other persoix making or attempting to make it. Youman v. Commonwealth, 189 Ky. 152; Hale v. Commonwealth, 197 Ky. 214.
It follows, therefore, that neither of the grounds urged for a reversal is sufficient to authorize it, and the judgment is accordingly affirmed.
