195 Ky. 813 | Ky. Ct. App. | 1922
Opinion op the Court by
Reversing.
Eight alleged reasons are assigned by appellant, Mills, for the reversal of the judgment finding him guilty of unlawfully having liquor in his possession and fixing his punishment at a fine of $100.00 and imprisonment in the county jail for thirty days, hut we will consider only two or three of the grounds assigned. Appellant is a colored man who resided with his family at McRoberts, Letcher county, at the time charged in the indictment. About the first of April a police officer or deputy sheriff heard
It is also objected that incompetent evidence was allowed to go to the jury on the trial over the objection of appellant, and this ground seems to be well supported by the record. The witnesses for the Commonwealth were allowed to tell of the discovery of an illicit still in a trunk on the second floor of the building in which appellant resided. Appellant did not own the still and did not, according to the evidence, have any connection with it. This evidence was incompetent, as the specific charge
Although the indictment was duplicitous' and subject to demurrer, the election of the Commonwealth, after demurrer, to prosecute appellant for the offense of unlawfully having liquor in possession rendered the action of the court in overruling the demurrer harmless error. Mays and Terry v. Commonwealth, 194 Ky. 540; Mobley v. Commonwealth, 190 Ky. 124; Ellis v. Commonwealth, 78 Ky. 138.
At the conclusion of all the evidence and after the defendant had testified that the liquor found in his house, with the exception of a small amount mixed with medicine, was not his and was there without his knowledge and in the possession of a boarder who lived at his house, and after he had pleaded not guilty of the charge, the court on its own motion directed the jury to find him guilty. This was a grievous error, highly prejudicial to appellant’s substantial rights. In the first place, there was a sharp issue formed by the evidence which forbade such a peremptory proceeding on the part of the court. The case under the evidence was clearly one for the jury. Aside from that we have held in the recent case of Bardin v. Commonwealth, 191 Ky. 652, that it is never proper for the trial court to direct a verdict against defendant where there is a plea of not guilty, notwithstanding the fact that the evidence of accused’s guilt may be convicing and wholly uncontradicted. A directed verdict in such case is reversible error.
It appears that the only liquor which is shown to have been in appellant’s house at the time of the search and which liquor belonged to him was about a gill mixed with some iodine and potash and used by him as medicine. This he had secured about three or four weeks before April 1,1922, for personal consumption only. Manifestly this liquor was obtained before the present prohibition act passed by our last legislature became effective on March 22,1922. Under the former act it was not unlawful for one to purchase or acquire liquors by purchase, nor to have the same in possession for medicinal purposes. The possession of a small quantity of liquor mixed with medicine and used by appellant for medicinal purposes for his own consumption was not a violation of either the spirit or letter of the present or past laws. Whitehead v. Commonwealth, 192 Ky. 428. The two
For the reasons indicated the judgment is reversed for a new trial not inconsistent with this opinion.
Judgment reversed.