195 Ky. 740 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
Upon their trial in the Estill circuit court on an indictment charging them with the illicit manufacture of whiskey by operating a “moonshine” still, the appellants, Sol Wells and Charlie Isaacs, were convicted and each of them punished by a fine and imprisonment in the county jail. Their motion for a new trial was overruled and each of them has appealed.
They relied in their motion upon numerous errors as entitling them to a new trial, among which are: (1), because the verdict was contrary to the evidence and not supported by it, and (2), error of the court in not directing a verdict of acquittal; but their counsel on this appeal, as stated in their brief, rely only on the above two grounds stated in the motion which, as will be seen, are directed only to the sufficiency of the evidence heard upon the trial.
Before considering those grounds it might not be inappropriate to say that the indictment is very defectively and in artificially drawn, but it informally charges the offense for which appellants were tried and its imperfections were waived by the failure to demur to it, or to require the Commonwealth to elect upon which of the several offenses named therein it would prosecute defend
The Commonwealth introduced Isaac Cornett, a justice of the peace in the territory where the illicit still was found, R. B. Lunsford a deputy constable, and Jeff Murphy. They each testified that in the early morning of June 2, 1921, they found an illicit moonshine still in Estill county on Horn’s river branch in a hollow; that it was full of mash and that there were three barrels of mash standing by it but no fire or heat around it; that there was a tent on a hill about forty yards from the still, and that two men ran out of the tent and did some shoot- ' ing at or towards the witnesses, which was returned, but no one was shot. Cornett testified that one of the men who ran from the tent he recognized as being appellant, Sol Wells. The witness, Lunsford, on account of the smoke from the shooting, did not recognize either of the two persons fleeing from the tent at the time, but after-wards, and at the trial, he recognized them as being the appellants, Sol Wells and Charlie Isaacs. The witness, Murphy, did not recognize either of the men because of the smoke from the shots which were fired and intervening brush between him and them. Both the still and the tent, as is manifest from the testimony, were located in a remote as well as more or less dense forest. Each of the defendants testified that they were not there and they proved, not only by themselves but by a number of other witnesses, that they were elsewhere although each of them resided within a mile or two of the place and near
Under this state of the record it is seriously insisted that there was no evidence authorizing the court to submit to the jury Whether appellants operated the still, much less was there sufficient testimony to authorize a conviction. Since the amendment of March 23, 1910, to section 281 of the Criminal Code, we have assumed jurisdiction to reverse the judgment in a criminal case where it was so flagrantly and manifestly against the evidence as to clearly indicate passion and prejudice on the part of the jury. Cloninger v. Commonwealth, 191 Ky. 841; Saylor v. Commonwealth, 158 Ky. 768; Day v. Commonwealth, 173 Ky. 269, and many others both before and since which might be cited. But that rule of practice does hot require us to grant a new trial where the testimony for the defendant only preponderates over that of the Commonwealth on the issue of his guilt. ,The rule only requires that the judgment of conviction be reversed where the evidence “is wholly insufficient to show’ ’ that the defendant is guilty of the offense charged (Saylor case, supra), for it is a rule of universal application that the jury are the judges of the credibility of the testimony, and, unless their verdict is so flagrantly against it as to shock the conscience and lead unerringly to the conclusion that it was the result of passion or prejudice, the verdict must stand. Kirk v. Commonwealth, 192 Ky. 460, and cases cited. We, therefore, conclude that the evidence was sufficient to authorize the jury to find that the defendants were the persons occupying the tent on the hill about forty yards from the illicit still when it was found by the Commonwealth’s witnesses.
The only issue about which there could possibly be any doubt in this case, according to our minds, is whether the defendants were the occupants of the tent. Upon that issue a greater number of witnesses testified for the defendants than for the Commonwealth. If their testimony and that of. their witnesses should be accepted as literally true their respective alibis might be considered as established, but to reconcile the contrariety of the tes