Hubbard v. Com.

• Decision Date: 30 January 1925
• Citation: 207 Ky. 76,268 S.W. 839
• Parties: HUBBARD v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

268 S.W. 839

207 Ky. 76

HUBBARD v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 30, 1925

Appeal from Circuit Court, Pike County.

Harmon Hubbard was convicted of unlawfully possessing intoxicating liquor, and he appeals. Affirmed.

Roscoe Vanover, of Pikeville, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

Upon his trial in the Pike circuit court under a multifarious indictment charging him with all the offenses enumerated in our prohibition statute, commonly known as the "Rash-Gullion Act" (Law's 1922, c. 33), the appellant, Harmon Hubbard, was convicted of possessing intoxicating liquors. His motion for a new trial was overruled, and from the judgment pronounced on the verdict he prosecutes this appeal. Upon demurrer filed to the indictment the commonwealth elected to prosecute him for possessing liquor, and the defect of multifariousness was thereby cured under numerous decisions of this court.

The liquor was found in the residence of defendant, and he denied knowledge of its being there, and stated that--

"My wife is a large wife, and she takes smothering spells, and she says that a little sup of whisky will help her, and she may have had some for medical purpose, but I sure did not have any there."

His chief complaint on this appeal is the failure of the court under its duty to instruct upon the whole law of the case, to expressly say to the jury that defendant was not guilty if they believed under the evidence that his wife was guilty. We cannot, however, agree with that contention, since the jury were plainly told that they could not convict defendant unless they believed beyond a reasonable doubt that he himself possessed the whisky.

It is also contended that the search warrant and affidavit to procure it were defective, but we have carefully examined them, and find that they measure up strictly to the requirements as heretofore laid down by this court in numerous cases. The affidavit was made by the chief of police of Elkhorn City, and stated as a fact that defendant had moonshine whisky in his residence at that time, which we have held in numerous cases was sufficient to create probable cause within the meaning and contemplation of section 10 of our Constitution; two of the latest cases being Abshire v. Commonwealth, 204 Ky. 724, 265 S.W. 304, and Neal v. Commonwealth, 203 Ky. 353, 262 S.W. 287.

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