Raum v. Board of Council

Opinion of the Court by

Judge Nunn

Affirming.

The appellant was convicted for two violations of the-local' option law during June, 1912. The prosecutions originated in the police court of the city of Danville. He appealed to the circuit court of Boyle County, and was convicted again in both cases. In one his punishment was fixed at $100.00 fine and forty days imprisonment, and in the other his fine was $60.00 and twenty-five days imprisonment. Both sentences of imprisonment were coupled with hard labor. It is practically conceded, or at events we so hold, that the evidence warranted the submission of each of these cases to the jury, unless the testimony was incompetent as appellant contends.

The facts in each case are so similar, and the legal propositions being identical, we will consider the cases together.

It is evident that appellant, Eaum, and perhaps others were under suspicion of previous violation of the local option law, and the chief of police, Logan Wood, in an effort to apprehend the violators, employed Eiley Williams and Eiley Preston, men of alleged unsavory reputation, to aid him in procuring evidence. They were to be paid $1.50 each per day, but the pay was not conditioned upon the value of their services, and under their contract of employment it was immaterial to them whether or not evidence was procured against any one.

On the night of June 20th Williams and Preston by pre-arrangement met Chief Wood in an alleyway some distance from Eaum’s home. The Chief carefully searched Williams and Preston and ascertained that neither had upon his person any whiskey or bottle. He gave to Preston 50 cents and an empty half pint bottle which he marked for identification, and they together, both Preston and Williams, went with Wood to a nearby point where he could see them enter Eaum’s house. Wood remained at this spot until Preston and Williams returned, which was about ten minutes. Wood swears he saw them go into Eaum’s house, and knows they had no whiskey when they went in. They returned in a few moments and brought to him the flask, which he had given them, partially filled with whiskey.

Preston swears that when he got into the house, he called Eaum, and upon payment to Eaum of 40 cents, Eaum filled his bottle and delivered it to him, and that with Williams, he drank a portion of it at the house, and delivered the remainder in the bottle to Wood.

Appellant insists that the court erred in permitting Wood and Preston to testify to these facts not occurring in the presence of Eaum, and cites the cases of Franklin v. Commonwealth, 105 Ky., 244, and Pedigo v. Commonwealth, 103 Ky., 41, and some others of similar import. All these cases are simply reiterations of the general rule, that acts of strangers, not pertinent to the issue, or their conversations, when not in the presence of the accused, are not competent evidence against him.

It will be observed that the testimony of Wood and Preston, objected to, was not as to any conversations they had, but merely described certain physical facts, and substantive evidence strongly tending to corroborate the fact that Baum sold Preston the whiskey, and to make out a case of circumstantial evidence pointing to Baum’s guilt. Since the evidence of these witnesses was not as to any conversation they had, and the acts proven were relevant to the issue, we think counsel is mistaken in his application of the cases cited. .

Appellant severely criticises the method adopted by the prosecution in procuring the evidence against him, but people living in glass houses must not throw stones. Violators of the local option law derive their profits largely from transactions with irresponsible men — men whom they believe would deny the sale if interrogated on the point — men whose credibility at least is not above reproach. It is' enough, that they be permitted to impeach the character of the prosecuting witnesses, but it does not lie in their mouth to impugn the motives of officials and good citizens who desire to enforce and uphold the law, when they supply corroborating evidence based upon irreputable facts and circumstances.

Appellant further argues that Preston was an accomplice, and that the court should have instructed the jury not to convict Baum upon Preston’s testimony unless that testimony was corroborated by other evidence tending to connect Baum with the commission of. the offense. Conceding for the moment that Preston was an accomplice, his testimony was corroborated by the evidence of Wood, above discussed. In our opinion, however, Preston was in no sense an accomplice in the crime of selling this whiskey, the offense with which Baum was charged. For that reason it is unnecessary to consider whether the rule of evidence as to accomplices (Section 241, Criminal Code) applies to misdemeanors. Baum was charged with selling whiskey in violation of the local option law. Appellant contends that Preston was an accomplice because he purchased the whiskey in violation of an act of the 1912 Legislature (page 656), in which it was declared to be unlawful to purchase or procure whiskey for another. This act is not an amendment to the local option act. It creates an altogether new and distinct offense from any denounced by the local option act. An accomplice is one who is in some degree involved in the offense charged, and who can be indicted for the same offense with which the accused is being tried. One who procures whiskey for another in violation of the 1912 act is not .an accomplice of the man who sells it to him in violation of the local option act. Neither do we mean to hold that there was an infraction of any law of the Commonwealth when Preston procured this whiskey for Wood to be used as evidence in behalf of the Commonwealth.

The judgment in both appeals is, therefore, affirmed.