37 S.W.2d 61 | Ky. Ct. App. | 1931
Affirming.
The appellant was indicted and tried under the charge of unlawfully having in his possession intoxicating liquor with a prior conviction for having transported liquor. He was found guilty, and his punishment was fixed at one year in the penitentiary. From the judgment he appeals.
As grounds for reversal, he insists that he was entitled to a peremptory instruction, and, if in error as to this, that the court failed to instruct on the whole law of the case. The undisputed facts are: Claude Tobin, a constable acting under a search warrant authorizing him to search a Whippet automobile bearing the license No. 44-965, stopped appellant as he was driving that car in the town of Paris. The constable made a search of appellant's person and of so much of the car as he could gain access to, and by this search found nothing. In the rear of the car was a compartment which from the record we take to have been placed where ordinarily a rumble seat is located. This compartment was locked. Appellant claimed that he did not have the key to this compartment, but would try to get one, and so he and the constable drove to a garage, but were unable to find a key to fit. Thereupon appellant told the constable that he did not give a damn what the constable did with the car, and he went his way. The constable took the car down to another garage, and, on the the compartment being prized open, a quantity of moonshine whisky was discovered. The record further discloses that this automobile was licensed in the name of one Robert McCarty who formerly ran a taxicab business in Paris. The evidence, however, shows that, for a long time prior to this car being found with the whisky, no one had been seen driving it except appellant and a young lady by the name of English, and she was seen in the car but a very few times. The witness Tom Craven testified that of his own *264 knowledge he knew that appellant had bought this car from McCarty, because at the request of McCarty he had gone to appellant to collect certain installments due upon the purchase price and appellant had told him that he would send a check to McCarty in a few days. It seems that on the night the whisky was discovered, or possibly the following morning, appellant approached a man by the name of Baldwin about going surety on his bond, and this before the officers had seen appellant or apprised him of the fact that there was a warrant out for him. Appellant also called up the witness Rice and asked him if the officers had found some whisky in his car. In addition to this, there were a number of witnesses who testified concerning the appellant's bad reputation as a dealer in illicit liquor. It is perfectly plain from this resume of the testimony that there was ample evidence to take the case to the jury on the proposition that this car belonged to the appellant and that he had control of it and the compartment where the whisky was found. Hence his motion for a peremptory instruction was properly overruled.
To support his second ground for reversal, appellant cites the cases of Herrin v. Commonwealth,
Finding no prejudicial error substantial to appellant's rights, we must affirm the judgment.