198 Ky. 714 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
Appellant, Scott, was tried by the county judge of Trimble county under a warrant charging Mm with the
The evidence for the Commonwealth established that on December 22,1922, defendant and Walter B. Simpson, were traveling one of the roads of Trimble county in a buggy drawn by a horse both of which were owned by defendant, and they stopped near a barn in front of the Residence of William Devine. Defendant requested of the latter the privilege of permitting Simpson to he down at some place in the barn until he became sober and the two put him in a feed trough where he remained but a short time when he got up and went to the dwelling house of Mr. Devine where he told Mrs. Devine that he was cold and wanted to warm. In the mean time, she had discovered the buggy and the condition of Simpson and upon going out to the buggy she discovered two jugs of whiskey therein with a third one in the barn, which had been taken out before her arrival. Her husband testified to substantially the same, and some of the Commonwealth’s witnesses, who were present at some stage of their visit, said that defendant stated at the time that “he didn’t bring it (the whiskey) there for Dad (Mr. Devine), that he was taking it to Campbellsburg for another fellow.” Mrs. Devine, after convincing herself that her husband was partaking of the whiskey and after realizing the situation, went to the county seat and swore out the warrant under which defendant was arrested. Defendant and Simpson remained at the Devine residence over night and some time the next morning the sheriff appeared with the warrant, but when he approached the house defendant procured the jugs and broke them. In the mean time Simpson had left and when the sheriff came up defendant, according to the former’s testimony, said “I am into it this time,” and he also said to that witness that he did not own the horse but had gotten it over at the residence of Simpson. A number of other circumstances and admissions by defendant are proven, strongly indicating
Defendant testified that Simpson approached him to borrow his horse and buggy for the purpose of going to Campbellsburg to buy an overcoat and that he (defendant) agreed to go along with Simpson as far as Campbellsburg and to there take the train for Louisville pursuant to a business mission; that they remained at Bed-ford, the county seat of the county, an hour or more and ■soon after leaving that place on their way to Campbellsburg and before they arrived at the Devine'residence, he discovered that something was the matter with Simpson who, according to his testimony, acted in a more or less crazy manner, and to restore him and to avoid traveling with him in that condition he stopped at Devine’s as hereinbefore recited, and for the first time discovered that the buggy contained the two or three jugs of whiskey, and that what he did and said after that was for the purpose of protecting his friend Simpson and not because he was guilty of any offense.
An affidavit for continuance was filed in the circuit court based upon the absence of Simpson who, if present,, according to the affidavit, would testify that he not only owned the whiskey but put it in the buggy without the knowledge or consent of defendant; and that the transporting of it was by Simpson and not by defendant. The affidavit not only failed to show that any process to compel the attendance of Simpson was procured but it expressly stated that none was obtained, and sought to excuse the failure to do so because defendant was unable to procure his leading counsel and to consult with him until the day before the case was set for trial, although that counsel did not participate in his trial before the county judge at which he was defended by other counsel; and it does not appear that he was deprived of an opportunity to consult with the latter in preparing his case in the circuit court. If the affidavit was otherwise sufficient to authorize either a continuance or to force the Commonwealth’s attorney to admit is as the evidence of the absent witness, under the rule, as announced by an unbroken line of opinions of this court, defendant was not entitled to either a continuance or the benefit of that testimony in the absence of due diligence to procure the attendance of the witness and for that reason this contention can not be considered.
If, therefore, all of the alleged newly discovered evidence relating to the admission of, and facts to which Simpson would testify was of such a nature as to deserve consideration on a motion of this kind we could attach but little, if any, weight to it, since it might be literally true and yet defendant be guilty of the offense with which he was charged. However, the facts and circumstances, with the proven admissions of defendant, are such as to leave but little doubt as to the defendant’s guilt; and the refusal of the court to grant a new trial upon this ground can not be said to prejudice his substantial rights.
Another ground for the new trial was actual bias by one of the jury who sat in the case, and affidavits of sworn witnesses were filed to show that the juror had expressed an unfavorable opinion against defendant before he was accepted on the jury. The court heard testimony relating to that ground and it was transcribed by the stenographer and made a part of the record, and without reciting it we deem it sufficient only to say that it quite
Section 353 of the Criminal Code of Practice, relating to the reversal of judgments by this court of convictions in misdemeanor eases, only authorizes this court to reverse them when “upon a consideration of the whole case, the court is satisfied that the substantial rights of the defendant have .been prejudiced thereby.” Under the authority therein conferred upon us, we are far from “satisfied that the substantial rights of the defendant have been prejudiced” by the alleged errors relied on, and the judgment is therefore affirmed.