200 Ky. 335 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
The appellant, Tom Smith, and one Wm. Pierce were jointly indicted in the court below for the offense of unlawfully having- in their possession an illicit still and outfit, designed for and commonly used in the manufacture of intoxicating liquors. For some reason, unexplained by the record, the appellant, Smith, was given, a separate trial. Whether Pierce has had a trial does not appear. The trial of the appellant resulted in a verdict finding him guilty of the offense charged and fixing his punishment at a fine of $300.00 and imprisonment of sixty days in jail. Complaining of the verdict and refusal of the circuit court to grant him a new trial he prosecutes this appeal from the judgment of conviction.
Pie relies upon the following grounds for a reversal of the judgment appealed from, viz.: (1) Error of the trial court in refusing to lay over or pass the trial of appellant from five o’clock p. m. February 21st until 9 o’clock a. m. the following day. (2) Error in admission of incompetent evidence. (3) Error in instructing the jury.
In support of the appellant’s first contention it is •stated in his affidavit filed on the motion for a continuance that his trial began and ended on the afternoon of February 21st, but that the trial court seeing that it would not he completed in time to- begin the trial of another case during the afternoon, announced before five o’clock that all jurors not engaged in the appellant’s trial and all litigants and witnesses in other cases awaiting trial could go until nine o’clock the next morning; that five of his witnesses, all named in his affidavit, who were present when the above announcement was made, erroneously understanding it to apply to them, left the courthouse and went to their respective homes. That after the Commonwealth completed its evidence, the appellant began his, and after he and two of his witnesses had testified, which was about five o ’clock, he discovered
The motion of the appellant to pass the case until nine a. m. the following day was overruled by the trial court, who, however, instructed the jury that the absent witnesses, if present, would testify to the appellant’s good reputation, and later allowed that part of the affidavit containing the evidence attributed to them read to the jury as their depositions. As it is not conclusively shown by the record that the appellant was deprived of the full benefit of the testimony of the absent witnesses, or some of them, by this ruling of the court, we do not feel authorized to declare it reversible error. "We do not overlook the fact that the statement was made in the appellant’s affidavit and supported by the affidavit of his counsel, that the full benefit to him of the testimony of these witnesses could not be obtained without their presence and the oral giving of it by them in courtbut to hold that such a statement of a defendant and his counsel, which as here made is a mere conclusion of the affiants, should compel the granting of the continuance sought, would deprive the court of the discretion to grant or refuse it with which the law clothes him. This we cannot do, for it is a well recognized rule in this jurisdiction that the ruling of a trial court in granting or refusing a continuance, will not, on appeal, be reversed, unless it is affirmatively made to appear to the appellate court that ■such ruling of the trial court amounted to an abuse of discretion. As such an abuse of discretion is not here shown, it is our conclusion that the trial court’s refusal of the passing or continuance moved for by the appellant was not error.
The third contention complaining of error in the instructions cannot be sustained. The instructions complained of, Nos. 1 and 2, are objected to because of the first’s telling the jury that in order to convict the appellant of possession of the still, proof by the Commonwealth of his ownership thereof was not necessary. The objection to No. 2 is because of its advising the jury that tibe burden of proving that the still in his possession was registered was upon the appellant, if as a defense to the charge in the indictment that it had not been registered, he claimed it was registered. Both instructions followed the indictment and each correctly stated the law.
The evidence abundantly proved the guilt of the appellant, and was furnished by the prohibition officer and associate by whom, acting under a proper search warrant, the still was discovered and seized in his slaughterhouse ; and also by two other witnesses who saw it in his possession and one of whom assisted in its operation.
No reason is shown for disturbing the verdict, and the judgment is affirmed.