Johnson v. CommonwealthJohnson v. Commonwealth
- Reporters:
- , ,
- Before:
- Dietzman
Opinion op the Court by
Judge Dietzman —Reversing.
The appellant, John Johnson, was convicted of the оffense of unlawful possession of whiskey. He appeals. We are of opinion that his motion for a peremptory instruction should have been sustained. The facts are these: On July 11, 1923, a federal prohibition agent, armed with a federаl search warrant and accompanied by the loсal county officers, went to search the Jerry G-allaghеr building, in Catlettsburg, Ky. This building fronts on one of the principal streets of thаt city. One side of it *706 abuts an alley which runs at right angles to the street on which the building; fronts.. Not only is there a front door to the building, but there is also a side door opening into the alley. The searching officers first attempted to enter the building through this side door, but, as they say, finding it locked, they then went around to the front door which they discovered to be padlocked from the outside. Just about the time they made this discovery, they heard a door slam in the alley, and, going back into the alley, they discоvered the appellant walking towards the street. They immеdiately placed him under arrest and entered the building through thе side door then unlocked, and which appellant says had not been locked though it was hard to open, and there discovered a colored man by the name of Harold Bratram and, on the floor, a quantity of moonshine whiskey in receptacles.
The appellant admitted that he hаd come out of this building, but said_ that just before the officers arrived, he was walking down the alley when he met John Spangler, who hаd charge of this building, standing in this side door; that he stopped and chatted with him a few minutes and then obtained permission to get a drink of water inside, it being a hot July day; that as he entered, Spаngler went out the ‘alley into the street. He said-that he got him a drink and then went out of the building, meeting the officers as abovе detailed. He denied having anything to do with the custody of the building оr having anything to do with the moonshine liquor there found. It was shown that this building was leased to a third party with whom the appellant had no connection whatever. Appellant’s reputatiоn as an illicit dealer in moonshine whiskey was established. Both hе and the colored man were jointly indicted and were triеd together, the latter in his absence, and both found guilty, as first mentioned herein. In the case of Mullins v. Commonwealth, 196 Ky. 687, 245 S. W. 285, we said:
“The rule that a conviction in a criminal case may be had upon сircumstantial evidence alone is subject to the qualification that if the evidence be as consistent with the defendant’s innocence as with his guilt, it is insufficient to support the conviction.”
. When analyzed, the testimony for the Commonwealth еstablishes only that .the appellant left a building not in his possession, nor under his control, in which a *707 colored man and moоnshine liquor were found. These facts are just as consistent with the appellant’s innocence as they are with his guilt, and, undеr the rule of the Mullins case, a conviction on such evidence alone cannot stand. Judgment reversed, with directions to grant appellant a new trial in conformity with this .opinion.