196 Ky. 687 | Ky. Ct. App. | 1922
Opinion .op the Court by
Reversing.
Appellant, who was jointly indicted with Les Mullins and found guilty of transporting intoxicating liquor, asks a reversal of the judgment on the ground that the evidence was insufficient to sustain the conviction, and the Court erred in its instructions to the jury.
The 'evidence is as follows: W. F. Gillis, marshal of the town of Livingstone, and John Kelly, the constable, testified that they had information that moonshine whiskey was being brought into Livingstone. On going north up the railroad track they saw appellant, Cas Mullins, and Les Mullins, who started in an easterly direction toward the hanks of Roundstone creek. They called to the two Mullins,- who were about one hundred yards away, hut could not say whether the Mullins heard them or not, but they could have heard them. 'The Mullins did not stop hut went on very fast. The officers began to fire their revolvers in .the air. The two Mullins then ran over a bank out of their sight and in the direction of a crosstie pile, which was also out of their sight. After the Mullins had gone the officers went to the crosstie pile, which was about thirty feet from where they first saw appellant, and found thereunder one quart of moonshine whiskey.
The rule that a conviction in a criminal case may be had upon circumstantial evidence alone is subject to the qualification that if the evidence be as consistent with defendant’s innocence as with his guilt, it is insufficient to support the conviction. Daniels v. Commonwealth, 194 Ky. 513, 240 S.W. 67; Hill v. Commonwealth, 191 Ky. 477, 230 S. W. 910; Denton v. Commonwealth, 188 Ky. 30, 221 S. W. 202. In brief, the evidence for the Commonwealth is as follows: When the officers called to appellant and his companion, they walked away. The officers then went to the crosstie pile and found one quart of moonshine whiskey and fresh tracks leading to where the bottle was. Appellant told Will Cotton there would be some liquor there. If it had been shown that the Mullins stopped at the crosstie pile as they walked away, then the jury might have been justified in concluding that one of them had liquor on his person and stopped at the crosstie pile for the purpose of concealing it from the officers; but, as the officers say that both
The court gave the following instruction:
“If you believe from the evidence in this case beyond a reasonable doubt, that the defendant, Cas Mullins, in Rockcastle county, and within twelve months before the finding of the indictment, unlawfully transported from one place to another in Rockcastle county at the time referred to in the evidence, spirituous, vinous or malt liquors, or that the defendant, Les Mullins, in company with Cas Mullins, and at the time referred to in the indictment, transported from one place to another in Rockcastle county spirituous, vinous or malt liquors, which belonged jointly to defendant and Les Mullins, you will find the defendant, Cas Mullins, guilty, and fix his punishment at any fine- in your discretion, not less than $50.00 nor more than $300.00, and for confinement in the county jail for a period of not less than thirty days nor more than sixty days in your discretion.”
Not only was there no evidence on which to base the instruction, but the instruction was erroneous in that it authorized the jury to find appellant guilty if Les Mullins, in appellant’s company, transported liquor which jointly belonged to appellant and Les Mullins. Though one may violate the statute by transporting intoxicating liquor through an authorized agent, he is not necessarily guilty because he and another own the liquor and the other transports it in his company, as the transportation by the other may be against his will and consent.
Judgment reversed and ■ cause remanded for new trial consistent with this opinion.