197 Ky. 761 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
From the judgment finding appellant Sorrels guilty of transporting intoxicating liquors, and fixing his punishment at a fine of $100.00 and thirty days in jail, he appeals, insisting that the judgment should be reversed because the trial court overruled his motion for a directed verdict in his favor. It is his contention that there was no competent evidence introduced by the Commonwealth sufficient to support the verdict, nor indeed enough to carry the case to the jury. While he admits that the police officer who arrested him found him transporting a keg of moonshine, he says that the officer unlawfully searched his automobile without a warrant so to do and that the evidence thus obtained was 'by reason of the unlawful manner of its obtention incompetent against him, and upon this is based his insistence that the trial court erred in not sustaining his motion for a directed verdict.
Without passing upon the question of whether the officer acted beyond his rights in searching the car under the circumstances without a search warrant, it is manifest that appellant was not entitled to a directed verdict because there was abundant evidence in the record to establish the fact that he was transporting liquor in violation of law. The fact, if it were a fact, that the evidence was obtained in an unlawful manner, which would have rendered it inadmissible had appellant objected to its introduction, cannot avail appellant under the state of the record showing the absence of an objection to the evidence at the time it was offered. In case his objection had been overruled he should have excepted and thus presented the legal question of its incompetency; but not having done so he is in no position to complain of the admission and consideration of the evidence, even though it was obtained in an unlawful manner. 23 C. J., p. 39; 22 C. J., p. 192; Quinlan v. Commonwealth, 149 Ky. 476; Daniels v. Commonwealth, 181 Ky. 392; Wilson v. Commonwealth, 181 Ky. 370; Dukes v. Commonwealth, 196 Ky. 60.
In the case of Duke, supra, we expressly held that the failure of defendant to object to incompetent evidence, or on its admission to move for its exclusion, was a waiver of the right of appellant to object to its competency and consideration by the jury, and he could not, after judgment, take advantage thereof.
A motion for a directed verdict should.not be sustained where there is evidence, as in this case, sufficient to sustain a conviction, even though such evidence be obtained through unlawful search, and for that reason is competent if the appellant fail to object to its introduc
For the reasons indicated the judgment is affirmed.
Judgment affirmed.