Spears v. CommonwealthSpears v. Commonwealth
- Reporters:
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- Before:
- Cullen
Lаwrence (Fats) Spears appeals from a judgment imposing punishment of a fine of $100 and a 30-day term in jail, upon his conviction of possession of intoxicating liquors for purpose of sale in dry territory. He maintains that (1) the evidence obtained upon a search of his premises should not havе been admitted because the affidavit for the search warrant was defective; (2) the evidence of possession of liquor was insufficient to sustain a conviction; and (3) evidеnce of a transaction of sale of liquor from the dеfendant’s premises, a few hours before the search, imрroperly was admitted.
In the descriptive part of the аffidavit for the search, warrant the premises to be seаrched were described as being located at “West Somerset.” The appellant contends that the description was defective in failing to designate that West Somersеt is situated in Pulaski County, Kentucky. There is no merit in the contention because the concluding words of the affidavit were that “intoxicating liquor * * * is being kept or stored on above described property for the purpose of sale and this being1 in Pulaski County, Ky. * *” (our emphasis).
The only whiskey actually found by the searching officers in the appellant’s possеssion consisted of a few drops in the bottoms of four labеled whiskey bottles. The appellant argues that this was insufficient evidence on which to base a conviction. Howеver, the testimony of the officers was that as they approached the appellant’s house, his two teen-аge daughters ran into the house and into the bathroom, which they locked. After the officers had entered the house they heard pouring noises from the bathroom and the sound of the toilet being flushed, and they smelled the strong odor of whiskey emаnating from the bathroom. After the girls left the bathroom the almоst empty bottles were found there. Obviously this circumstantial evidеnce was sufficient to sustain the conviction.
An officer tеstified that around 3:45 a. m. on the day on which the search later was made, he and another officer went to the appellant’s home with a boy they had “picked up.” In an automobile outside the house, the officers gave the boy а $5.00 bill; the boy “got out of the car and walked up to the front door on the porch and in the front door and then he cаme back out with one pint of whiskey.” The appellant maintains that the admission of this testimony was improper for two reasons, the first being that the evidence did not show from whom the whiskеy was purchased or even that a sale of whiskey was in fact made. We think the point is not well taken, because thе evidence did show by reasonable inference a sаle of liquor inside the appellant’s home, from which pоssession of liquor by the defendant could be inferred. The other ground of objection to the testimony is that it showed another, distinct and separate crime. The ground is not sustainable, because it is ? well established rule that evidence of a specific sale is admissible to sustain a charge of possession with intent to sell. See Hammons v. Commonwealth, Ky., 252 S.W.2d 51; Helvey v. Commonwealth, Ky., 396 S.W.2d 780.
The judgment is affirmed.
All concur except NEIKIRK, J., who did not sit.