287 S.W. 569 | Ky. Ct. App. | 1926
Reversing.
The appellant was convicted, both in the police court of Catlettsburg and in the Boyd circuit court on appeal, of the offense of unlawfully possessing liquor. From the latter judgment he brings this appeal.
During the year 1925, and for some years prior thereto, appellant was a justice of the peace of Boyd county, and, as such, had been quite active in connection with J.M. Biliter, then a federal prohibition agent, but now the county tax commissioner of Pike county, in ferreting out and arresting violators of the state and national prohibition laws. Biliter at this time lodged with the prosecuting witness, Flora Mann, whose reputation is thoroughly attacked in this record. She was a woman 40 years old, with a daughter sixteen and a son twenty-one years old. In the summer of 1925 she filed suit against Biliter, charging that he had represented himself to her as a single man, had won her affections, and under the promise of marriage had seduced her, but she had discovered that he was a married man and unable to *178
carry out his promise of marriage, and that by reason of all of these facts she had been damaged in the sum of $25,000.00, judgment for which she sought. The appellant was Biliter's friend and for some reason or other, in October, 1925, a short while after this suit was brought, Flora Mann swore out the warrant on which this prosecution was based in the Catlettsburg police court against appellant, charging him with the offense "of having liquor in his possession" in the preceding January and February. On the trial, the Commonwealth proved by Mrs. Mann and her daughter that the appellant brought in a grip to Biliter's room on different occasions in January and February, 1925, whiskey which, they testified, Biliter afterwards used in drinking parties. They admit, however, and the record shows without contradiction, that no one had ever seen the appellant take a drink or take any part in these parties. The appellant, Biliter, and Mrs. Mann's son testified that appellant never brought any whiskey to Biliter's room at any time. Appellant admitted that he brought a grip to Biliter's room, but said that it was the grip he had borrowed from Biliter with which to take a trip. Appellant insists that the verdict is flagrantly against the evidence, his argument being that the Commonwealth's proof is incredible because for the appellant to carry whiskey to Biliter, a federal prohibition agent, would be like carrying coals to Newcastle. However that may be, coal is sometimes taken to Newcastle, if Newcastle be on a strike. It was for the jury to say whether or not they believed the tale of Flora Mann and her daughter, or the testimony of the appellant and his witnesses, and the verdict found in accordance with the Commonwealth's side of the evidence is not flagrantly against the same. Deaton v. Commonwealth,
Appellant next contends that his demurrer to the warrant should have been sustained, first, because it failed to charge him with the "unlawful" possession of intoxicating liquors; and, secondly, because it charged him with more than one possession, and hence more than one offense. In the case of Webb v. Commonwealth,
So far as the other ground in support of the demurrer is concerned, the Commonwealth is probably correct in its contention that this warrant charges a continuing offense rather than a series of offenses, and hence was not demurrable on the ground of duplicity. It is true that when the proof of the Commonwealth was introduced it failed to establish a continuing offense. On the contrary, it established a series of different offenses committed in the months of January and February, 1925. Appellant did not object to the introduction of any of this evidence. Hence the court did not err, as appellant contends it did, in not confining the jury to a consideration of the first offense shown by the Commonwealth and in submitting to the jury whether or not appellant had any intoxicating liquor in his possession at any time within 12 months before the warrant was issued, thus permitting the jury to choose for a conviction any of the offenses proved by the Commonwealth. In Adams Express Co. v. Commonwealth,
It is lastly contended that the instructions are erroneous because of the omission of the word "unlawful" from the instruction submitting the question of the possession of the intoxicating liquor. In support of the instruction as given, the Commonwealth relies on the cases of Vanover v. Commonwealth,
Further, it is in the province of the jury to believe all of the Commonwealth's evidence or all of the defendant's evidence or part of both. It is its duty to try to reconcile all the evidence. In this case, it disbelieved, as its verdict shows, appellant's evidence to the effect that he did not possess liquor. And yet it may have believed that he had come by such liquor in raids and had it in his possession as an officer, especially in view of the evidence that appellant was never seen at the drinking parties of Biliter and was never seen to take a drink himself. Under the instructions of the court, if the jury believed appellant had the liquor in his possession, it had to find him guilty. If he had it in his possession, as a peace officer, to be used in any prosecution in court for violation of the prohibition laws, such possession was not illegal. Kentucky Statutes, section 2554a-12. But the legality of his possession was not submitted, and, for this reason too, the omission of the word "unlawful" in the instruction objected to was prejudicial.
Therefore, for the reasons herein stated, the judgment herein is reversed. On the return of this case to the circuit court the Commonwealth will be permitted, if it so desires, to amend the warrant, and the circuit court will conduct the new trial in accordance with this opinion. *182