Kidd v. CommonwealthKidd v. Commonwealth
- Reporters:
- , ,
- Before:
- Thomas
Opinion of the Court by
Judge ThomasAffirming.
Aрpellant, Everett Kidd, was tried in the police court of Corbin, Kentucky, on a warrant issued by that court charging him with the offense of unlawfully having in his possession intoxicating liquors. He was convicted and proseсuted an appeal to the Whitley circuit court, where he was again convicted, and from the judgment rendered on the verdict of the jury he prosecuted this appeal.
In the language of his аttorney, reliance is had for reversal “mainly on the ground that the evidence was not sufficient to сonvict him and that the court erred in overruling defendant’s motion for a directed vérdict at the closе of the evidence offered by the Commonwealth.” As we construe the brief, it is the contention of сounsel (a), that the evidence for the Commonwealth, if competent, *357was insufficient to sustain the conviction, but (b), that the evidence was incompetent because obtained under a search warrant illegally issued.
Taking up contention (a), the evidence was that two policemen of the city of Corbin requested one Joe Earls to procure for them some whiskey and that they shadowеd him on his mission for that purpose and saw him go to a certain boarding house in the city and into a roоm therein which was occupied by defendant as a lodging room from which he soon returned with the whiskey in а fruit jar; that while he was in the room the policemen, who were sufficiently near for the purposе, heard something drop and break, which sounded like a bottle or some glass vessel. ’ “Within thirty or forty minutes they procured a search warrant to search that house and when they went into the room defendant was occupying a bed therein and they found a broken fruit jar upon the floor and a lid to it, a funnel with sоme whiskey in the lid, and a number of other fruit jars containing small quantities of whiskey, some of which were sitting on the floor while others were located in other parts of the room, and they likewise found some jars in а shelf or pantry adjoining that room and which opened into it. The building was operated as a boаrding house by the father of Earls, and the particular room searched was the one occuрied by the defendant as a. boarder and from which Earls procured the whiskey. There was also evidence of the reputation of defendant as a dealer, possessor and handler of intoxiсating liquors.
Defendant testified that he went into the room and retired after Joe Earls procured thе whiskey for the policemen and before the search was made and that he did Hot discover оr know that the jars or any of their contents were in the room nor could he explain why the funnel was thеre, and stated that Earls or some one else brought the whiskey into his room without his knowledge or consеnt. From this brief statement of the substance of the evidence it is perfectly apparent that if it wаs competent it was sufficient to authorize the verdict of guilty, since the jury had the right to disregard defendant’s explanation of the presence of the whiskey in his room and to decline to accеpt it as the absolute truth of the matter.
Considerable latitude of argument is indulged in in the discussion of point (b), but undеr the condition of the record it will be unnecessary to attempt to answer it. *358The record shows that in the cross-examination of the witnesses for the Commonwealth defendant’s counsel introduced thе search warrant as evidence in the cause, but it is nowhere made a part of the record either by an order of court or by the bill of exceptions, in which event we will presume that it was sufficient to measure up to the requirements of the law and that the court properly so determined.
Wе have held in numerous cases that if the search warrant was valid on its face the burden was upon dеfendant to show that it was issued upon an improper affidavit. The affidavit in this case was neither introduced nor offered as evidence and under the ruling referred to the question of its .sufficiency or insufficiеncy is not presented. It is true that the clerk has copied in the transcript two documents or pаpers, one purporting to be an affidavit of two persons and the other one a searсh warrant ; but the fact remains that neither of them is legally identified or properly made a part оf the record under any rule of prevailing practice, and it is conceded by counsel that thе affidavit is not a part of the record since he refers to it as having been “copied into the record for some purpose.” We assume that he concluded the warrant was properly in the record because he introduced it and that the affidavit was not so because it was not intrоduced.
Besides the testimony for the Commonwealth which we have narrated, there were other fаcts and circumstances pointing to the defendant’s guilt, which we think the evidence in its entirety fully sustains, and under the condition of the record we find no ground for reversing the judgment, and it is accordingly affirmed.