| Ky. Ct. App. | Sep 30, 1924
Opinion op the Court by
Affirming.
On the arrival of the train for Nortonville at 3:25 a. m., appellant, Alberta Ragland, carrying a handbag, alighted and walked off several steps from the train and was standing alone, when the chief of police of the town came along and inquired of her whose bag it was that sat near her feet. Appellant declared she did not know whose bag it was; that it was not hers. Thereupon the officer said, ‘4 If no one claims it, I will take it with me, ’ ’ and carried it away. Immediately before the officer came to where appellant stood he had arrested a colored man named Robert Owen for being drunk. The drunk also carried a suitcase or handbag. The officer proceeded immediately with his prisoner and two bags to the jail. After locking up Owens he looked, into the bag which he took from him and found it contained a jug full of whiskey. Later he looked into the bag which he found near appellant and it contained one or more jugs of whiskey. At the trial in police court appellant testified that neither of the bags belonged to her; that she did hot know whose they were and that she had. no connection with the whiskey. She did not testify on the trial in the circuit court, to which she prosecuted an appeal. The Commonwealth introduced Robert Owen as a witness in its behalf and proved by him that he was on the train arriving at Nortonville about 3:25 a. m., and that he saw appellant on the train with a man; that she had with her the two handbags which the officer searched; that before getting off the train the woman asked her companion to ask the witness to carry one of the bags off the train for her, and that he did so at her request, not knowing what the bag contained. He said he was drunk, but as he came off the train he looked back and saw appellant coming off the train with the bag which was found at her feet, a few minutes later by the officer; that the bag found by the officer at appellant’s feet was the same she had on the train and the one she was carrying off the train when he last saw her.
She first insists that the affidavit which she filed for a continuance should have been read to the jury as true; that the court erred to her prejudice in declining to instruct the jury to accept the statements in the affidavit concerning what certain witnesses named therein would state in her behalf, as true. This insistence cannot be maintained. Subsection 1 of section 189 of the Criminal Code, among other things, provides that when an application is made by a defendant for a continuance, based upon an affidavit stating the absence of one or more material witnesses, and the fact which said absent witnesses would, if present, prove, the attorney for the Commonwealth shall not be compelled, in order to prevent a continuance, to admit the truth of the matter which it is alleged in the affidavit such absent witnesses would prove, but only that such absent witness or witnesses would, if present, testify as alleged in the affidavit.
Construing this section we have held in the case of Ross v. Commonwealth, 24 R. 1621,'that the trial court may in its discretion refuse to permit an affidavit to be read as true and that to refuse to so hold is not reversible error unless the court abused a sound discretion. Kelly v. Commonwealth, 165 Ky. 483" court="Ky. Ct. App." date_filed="1915-06-16" href="https://app.midpage.ai/document/kelly-v-commonwealth-7142699?utm_source=webapp" opinion_id="7142699">165 Ky. 483; Chaney v. Commonwealth, 149 Ky. 464" court="Ky. Ct. App." date_filed="1912-09-25" href="https://app.midpage.ai/document/chaney-v-commonwealth-7139906?utm_source=webapp" opinion_id="7139906">149 Ky. 464.
She next insists that the officers had no right to make a search for intoxicating liquors without a search warrant, or “unless after having first made a lawful arrest.” Inasmuch as appellant disowned both suitcases she is not in position to complain that they were searched by the officer. Moreover, the colored man carrying the bag in advance of appellant was arrested for drunkenness which he confessed. When an officer makes a lawful arrest he may search the person or baggage of the person apprehended, and if he finds contraband liquor his evidence will be competent upon a trial of the offender charged with violating the prohibition laws. Ash v. Commonwealth, 193 Ky. 446.
Appellant also insists in her supplemental brief that a prosecution for a violation of chapter 33 of the Acts of 1922, known as the Rash-G-ullion Act, in the police court must be by indictment, and she cites and relies upon section 1141, Kentucky Statutes, section 306 of the Crim
We find no error prejudicial to the substantial rights of appellant and the judgment is affirmed.