Maier v. Com.
| Citation | 276 S.W. 116,210 Ky. 441 |
| Parties | MAIER v. COMMONWEALTH. |
| Decision Date | 06 October 1925 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Campbell County.
Conrad Maier was convicted of the unlawful possession of intoxicating liquor, and he appeals. Affirmed.
Samuel Rotter, of Cincinnati, Ohio, for appellant.
Frank E. Daugherty, Atty. Gen., and Chas. F. Creal, Asst. Atty Gen., for the Commonwealth.
Conrad Maier appeals from a judgment of conviction on the charge of unlawfully having intoxicating liquor in is possession, and urges as grounds for reversal: (1) Erroneous instructions (2) incompetent evidence; (3) he is entitled to a peremptory instruction; (4) evidence is insufficient to support the verdict.
The first instruction reads in part:
"If the jury believe from the evidence beyond a reasonable doubt that the defendant, Conrad Maier, on April 19, 1924, in the city of Clifton, Campbell county, Ky. possessed or had in his possession any spirituous or intoxicating liquor, to wit, moonshine whisky, except for sacramental, medicinal, scientific or mechanical purposes, then you will find him guilty. * * *"
On the authority of Spriggs v. Commonwealth, 200 Ky. 559, 255 S.W. 108; Potter v. Commonwealth, 202 Ky. 710, 261 S.W. 256, it is urged that the possession of moon shine liquor is not denounced as a public offense, and that it is error for the court to so instruct the jury. Formerly there was a statute providing a specific punishment for the manufacture of moonshine liquor. The Rash-Gullion Act (Acts 1922, c. 33), provided a specific punishment for the unlawful manufacture of intoxicating liquor which in terms conflicted with the former act, and in the cases cited we held that the former act was thereby repealed and no longer in force; but those opinions do not apply to the case in hand. Here the charge is the possession of "intoxicating liquors," which is clearly denounced by the Rash-Gullion Act, and the words "moonshine whisky" are merely descriptive of the liquor which he is charged with having in his possession. Clearly the instruction was proper.
(2) The affidavit for the search warrant fully described the premises and the person in control, and further stated "that intoxicating liquors are wrongfully possessed on said premises in violation of law."
It is urged that this affidavit was fatally defective, and the warrant based thereon invalid and the evidence of search incompetent, for the reason that the...
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