193 Ky. 449 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
The appellant, Cliff Slaton, was convicted of having in his possession an illicit or “moonshine” still, in violation of section 2572c-8, vol. 3,.Kentucky Statutes, and his punishment fixed at a fine of $250.00 and confinement in the county jail for sixty days.
For a reversal of the judgment his counsel contends that “there is not a scintilla of evidence from which.it could be reasonably inferred that the Commonwealth had established that Mr. Slaton had in his possession the still found in his home;” and, although stating that “upon this theory the appellant rests his entire case before this court,” he also complains that “quite a good deal of testimony was incompetent and exceedingly prejudicial to Mr. Slaton.”
From an examination of the record, however, we find that the defendant offered but three objections during the introduction of the evidence; that only two of his objections were overruled and exceptions saved; and that upon neither of these occasions was the objection directed to any material part of the evidence of which complaint is now made. We need not, therefore, further consider the complaint as to the competency of the evidence upon which the case was tried.
The evidence for the Commonwealth is in substance as follows: On the night of February 2,1921, Jesse Cor-man, the sheriff of Breckinridge county, armed with a
Mitcham also made his escape and the officers found in the kitchen quite a large moonshine still, a large tank of mash composed largely of meal, a number of jugs and bottles and quite a,quantity of moonshine whiskey. In addition the Commonwealth proved by a number of witnesses that continuously for some time before the blinds of- the kitchen window had been drawn and that they had seen smoke coming out of the kitchen chimney at unusual hours; that during this time the defendant was frequently seen on or about the place; that the defendant owned the house and farm of -about 240 acres upon which it was located; and that no one but the defendant, and Mitcham was in -or about the house when the search was made.
Defendant and his witnesses testified that about two weeks previous to the search the defendant had rented part of his farm and the- northwest end of his house, including the kitchen and the room where the plumber’s tools were found, to a man by the name of Clyde Herms
In explanation of his flight, defendant stated that he did not know Gardner and, believing that he might he a federal revenue officer and would arrest him, take him to Louisville and put him in jail without giving him an opportunity to give bond, he decided to run rather than risk the explanation he now offers. He denies that the sheriff told him that he was searching for a moonshine still or that he denied that there was one on the place, and states that the sheriff told him that he was looking for moonshine whiskey .and that he said that if there was any whiskey in the house he didn’t know it but would like to have some of it and would help in the search.
, It was clearly the province of the jury to determine whether or not the explanation offered by defendant and his witnesses of the many incriminating circumstances was true, or not, and unless true, there can be no doubt whatever that defendant was proven guilty as charged of having in his possession an illicit or moonshine still, even though the fact was established by the Commonwealth hy circumstantial evidence only.
The rule is firmly established in this state that a conviction in a criminal case may be had upon circumstantial evidence alone, and experience proves that such proof is often more conclusive and satisfactory than positive and direct evidence. Smith v. Commonwealth, 140 Ky. 599, 131 S. W. 499; Mobley v. Commonwealth, 190 Ky. 424.
Such is not the case here and the judgment is affirmed.