Citation Numbers: 207 Ky. 417
Judges: Sampson
Filed Date: 2/17/1925
Status: Precedential
Modified Date: 7/24/2022
Opinion of the Court by
Affirming.
Appellant Minch relies upon two grounds for a reversal of the judgment against him based upon a charge of selling intoxicating liquors in violation of law. They are, (1) the verdict is flagrantly contrary to the law and evidence; and (2), the trial court admitted evidence of a separate offense not connected in time or circumstance with the offense charged in the warrant. 'His punishment is fixed at a fine of $300.00 and thirty days’
This witness testified that on the night of January 19, 1924, he was in Shelbyville with some white men and was sent by one of them to the place of business of appellant to buy a half pint of whiskey, being given a two-dollar bill with which to make the purchase; that pursuant to his instruction he went to the place of appellant where he often had been before, and calling appellant aside told him he wanted a half pint of whiskey, whereupon appellant put a half-pint bottle of whiskey in a paper bag and gave it to appellant, receiving in payment therefor the two dollar bill out of which appellant gave the witness fifty (50c.) cents, in change; that the witness immediately left the restaurant of appellant and went to the automobile where two or three white men were waiting and delivered the whiskey to the man who had given him the two dollars. The bottle was there opened and found to contain whiskey, each one taking a drink of it. Shortly thereafter the witness was taken by police officers before a magistrate or judge, where he swore to an affidavit upon which a warrant was issued for appellant, and another affidavit was made upon which a search warrant for appellant’s restaurant was, .issued. The witness, Dott Harris, is sustained in all this by the evidence of two or three other persons, one of them to the effect that he gave Harris the two-dollar bill to get the whiskey and directed him where to go; that he watched him go into the restaurant of appellant and later saw him come out, and that when he came to the automobile he found in Harris’ pocket in a paper bag one half pint of red whiskey. Other witnesses, testified in substance the same, one of them saying he entered the restaurant immediately after Harris went in and saw him make, the purchase from appellant.
(2) The search warrant issued immediately after the sale of whiskey was executed by a policeman and other prohibition officers and in doing so a jug of intoxicating liquor was intercepted at the back door of the restaurant of appellant as it was being carried out for the purpose of destruction. This container, practically full of whiskey, was introduced by the Commonwealth as evidence upon the trial of appellant for selling whiskey to Harris.
Appellant was represented by able counsel. When the evidence was offered concerning the jug of whiskey appellant made no objection thereto.. On the contrary, counsel for appellant carefully cross-examined the witness concerning the finding of the jug of whiskey. No motion was made to exclude the testimony concerning the jug of whiskey. A policeman who testified- concerning the finding of the jug at the back door of appellant’s place of business in the hands of one of his clerks was asked by counsel:
. “Q. Now, when you first saw that jug it was entirely full wasn’t it? A. Very near full. Q. Wasn’t it full? A. I could not say exactly full. Q. Some liquor had been taken out of it since you first saw it? A. Yes, sir, there was some taken out of it and tested.
Ee-direct examination:
“Q. What did you say became of the balance that was not in there (jug) ? A. Taken over and tested.”
For the reasons indicated the judgment is affirmed.