202 Ky. 516 | Ky. Ct. App. | 1924
Opinion of the Court by
Reversing.
The appellant, Modam Helton, his father, William Helton, and Willis Brown, were jointly indicted, charged with the offense of unlawfully having in their possession an illicit “moonshine” still designed for nse in the unlawful manufacture of intoxicating liquor. Modam Helton and Willis Brown were jointly tried for the offense charged in the indictment, which, as to the appellant, Mo-dam Helton, resulted in a verdict by the jury finding him guilty and fixing his punishment at a fine of $250.00 and imprisonment of three months in jail.
The record contains an order showing ths dismissal of the prosecution as to Brown at the close of the evidence, but whether the dismissal was on the motion of his own counsel, or that of the Commonwealth’s attorney, does not appear from the record. Although it is shown by the bill of evidence that William Helton, the third defendant in the indictment, was present at the trial of the
The appellant was refused a new trial, and has appealed, seeking the reversal of the judgment of conviction because of error committed, as. alleged, by the trial court in the following particulars: (Í) In overruling the appellant’s demurrer to the indictment; (2) in admitting incompetent evidence; (3) in overruling the appellant’s motion made after the introduction of the Commonwealth ’s evidence and renewed at the conclusion of all the evidence, for an instruction peremptorily directing his acquittal by verdict of the jury; (4) in orally instructing the jury upon the law of the case; (5) because the verdict was flagrantly against the evidence and the result of passion and prejudice on the part of the jury.
Tested by the provisions of sections 122-124, Criminal Code, the indictment in question is not open to attack by demurrer; for, considered as a whole, the offense charged by it is stated with sufficient clearness and certainty to enable the several defendants accused of its commission, assuming they are persons of common understanding, to know what they were charged wdth and to enable the court to pronounce sentence. This being so, the action of the trial court in 'Overruling the appellant’s demurrer to the indictment was not error. Meredith v. Commonwealth, 199 Ky. 544; Overstreet v. Commonwealth, 147 Ky. 471; Rutland v. Commonwealth, 160 Ky. 77; Collins v. Commonwealth, 195 Ky. 745; Forman v. Commonwealth, 195 Ky. 758.
The evidence complained of as incompetent was furnished in part by the testimony of Harvey-Brown and in part by that of Monroe Thompson, all objected to by the appellant. . Brown was first introduced by the appellant and testified as to the latter’s character and that of his father, Wm. Helton, stating, among other things, that the reputation of each of them was good and that he had never heard either of them-charged with operating a still or being engaged in the liquor traffic. Brown was later recalled as a witness by the Commonwealth and asked if he had not, at a time indicated, informed Monroe Thompson, then a deputy 'Sheriff, that there was talk in the neighborhood of the Heltons that appellant and his father
The appellant’s complaint of the action of the trial court in orally instructing the jury upon the law of the ease, we are not at liberty to consider, because it was not made a ground for a new trial moved for in the court below. The really material question presented for decision by the appeal is, whether the appellant was entitled to the peremptory instruction asked on the trial in the court below. It appears from the evidence that the Commonwealth’s chief witness, William Hopkins, town marshal of Crab Orchard, supplied with a search warrant, accompanied by his son-in-law, Sizemore, went to the farm of a Mrs. Williams, which adjoined that of Wm. Helton, appellant’s father, and in a secluded place thereon enclosed in a cornfield cultivated by Willis Brown, discovered near a small spring the still described in the indictment, which was concealed in a shock of corn. Hopkins went to the home of William Helton about 500 yards distant and there found the appellant, who resides with his father, and at Hopkins’ request appellant went with him to where the still was found to assist him in loading it on his
Hopkins further testified that the still was found in a very secluded swamp, covered with trees and bushes, and that before finding the still he discovered within a few feet of it near the spring, ashes and the remains of a recent fire where the still had evidently been operated, and at the same place several empty barrels and about 150 gallons of mash. Hopkins also testified that he discovered tracks, some of them made by a person wearing a pair of No. 9 gum boots, in the path that led from the spring to the corn shock where the still was concealed and in the road running therefrom through the cornfield to the county road, and that when he obtained the assistance of the appellant in loading the still for removal the latter was wearing gum boots, but the witness wholly failed to state whether his discovery of the gum boot tracks, or other tracks, was made before or after the arrival of the appellant where the still was found. Hopkins admitted that he did not then charge the appellant with the ownership of the still, or its previous operation, or arrest him for any offense connected with its ownership or operation, but said he did ask him “if he knew of or had any idea as io who had been running the still,” in reply to which the appellant said “he had no idea who was running the still. ’ ’
Hopkins applied no measure to the gum boot tracks he claimed to have seen where the -still was found, nor did he compare them with any tracks made by the appellant while assisting him to load the still in the automobile; and although it was admitted by Hopkins that he had previously been informed of the existence of the still and its location by the Bralys, father and son, neighbors of the Heltons, and he and Sizemore were conducted by them to the place where the still was found, notwithstanding
The only other witness, besides Hopkins, introduced in chief for the Commonwealth, was Dee Sizemore, who accompanied him on the hunt for the still and was left in charge of the still while Hopkins went to the home of the Heltons to obtain assistance in loading it for removal; and as Sizemore frankly admitted that no tracks of any kind were seen by him at or about the still or in the path or roadway leading to it, it is obvious that his testimony was of no corroborative value to that of Hopkins. It was, however, more favorable than hurtful to the appellant, as it showed that nothing was said by Hopkins upon the discovery of the still, or after the arrival of the' appellant, charging or intimating any connection on his part, or that of William Helton or Wilson Brown, his co-defendants in the indictment, with the ownership, operation or possession of the still in question.
It is patent from the evidence of the Commonwealth that it wholly failed to establish the appellant’s guilt. It did not conduce to prove that he was ever seen at or near the place where the still was found, that it was on land that was ever owned by him or in his possession, o.r that there is or was a path or roadway leading from where the still was found to or in the direction of his home. It also failed to show that appellant ever owned, operated or had in his possession this or any other still, or that his reputation is' that of a person who engages, or has engaged, in the manufacture or sale of intoxicating liquor; nor did it conduce in any way to identify him as the maker of the gum boot tracks, or his gum boots of a size capable of making the tracks the Commonwealth’s witness, Hopkins, claims to have discovered at or near the still in question.
Upon the other hand, the testimony of the appellant completely destroys any suspicion of his guilt that might, in its absence, have been created by that of Hopkins’ discovery of the gum boot tracks, as it shows, without contradiction, that his gum boots, which were worn that day because of his assisting his father in a heavy morning dew with his crop of millet, could not have made the tracks claimed to have been seen by Hopkins, for they
We find that appellant’s testimony was corroborated by much of that given by his father and Wilson Brown, and is uncontradicted from any source, in addition to which there was testimony furnished by eight apparently reputable witnesses, residents of the Helton neighborhood, all to the positive effect that they knew the reputation of the appellant, his father and Wilson Brown; that the reputation of each of them was good, and that they had never heard any of them “accused of violating any of the liquor lows. ’ ’
In view of the evidence, even of the Commonwealth alone, we can but conclude that it was insufficient to establish the appellant’s guilt, or to authorize the submission of the case to the jury; hence we must declare the refusal of the trial court to give the instruction directing his acquittal by verdict of the jury, reversible error.
Our view of the case may be better understood from the following excerpt quoted from the opinion in Johnson v. Commonwealth, 194 Ky. 568:
“All right thinking persons must concede the necessity of enforcing the law prohibiting the manufacture and sale of intoxicating liquors, but such necessity cannot justify the conviction of those charged with the violation of such laws upon mere suspicion, as was done in this case. The guilt of the offender must be established by the evidence beyond a reasonable doubt,' as in the case of other law violators. Guilt may be shown by circumstantial evidence sufc ficient to destroy every reasonable hypothesis of innocence, but it can not be established upon mere suspicion or conjecture. Hence it follows, thait the appellant’s conviction in this case was unauthorized by the evidence, for which reason he was entitled to the directed verdict of acquittal requested by him.”
The conclusion stated makes it unnecessary for us to consider the remaining grounds for reversal urged hy