205 Ky. 634 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
On this appeal appellant, Keifner, insists that the judgment of conviction against him should be reversed because of errors committed by the trial court, (1), in sustaining a demurrer to appellant’s plea of former jeo
His plea of former jeopardy is rested upon a conviction of the same offense in the police court of the city of Owensboro. When he was first arrested he was carried before that court for trial and was convicted. From the judgment of conviction he appealed to the Daviess circuit court. In his plea of former jeopardy he attempted to make the conviction in the police court a bar to a retrial of the case in the circuit court to which he had appealed. It is a novel notion and absolutely unsound. Having prayed an appeal to the circuit court he cannot plead former conviction in the police court as a bar to a hearing on his appeal. His contention that the court should have overruled the. demurrer to his plea of former jeopardy wholly without merit.
The affidavit upon which the search warrant was issued states facts sufficient to have created in the mind of any reasonable judge the belief that appellant was guilty of possessing intoxicating liquors in violation of law. It sets forth facts. These facts when construed in the light of all the surrounding circumstances referred to in the affidavit, leave no doubt that appellant had in his possession at that time intoxicating liquors for other than lawful purposes. The search warrant was in the regular form, and therefore sufficient.
Inasmuch as the affidavit and search warrant were sufficient appellant can no longer contend that the evidence introduced by the Commonwealth was incompetent.
The officers found appellant in possession of more than half a barrel of wine which they testified was intoxicating, and they produced samples of it at the trial, and the jury was allowed to examine it. It was not necessary to prove the percentage of alcohol which the wine contained. It was sufficient to prove that it was intoxicating.
There is no merit in either of the contentions made by appellant and the judgment must be and is affirmed.
Judgment affirmed.