De Attley v. Com.
| Decision Date | 26 April 1949 |
| Citation | 310 Ky. 112,220 S.W.2d 106 |
| Parties | DE ATTLEY et al. v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Casey County; J. C. Carter, Judge.
Etta DeAttley and Charles DeAttley were convicted of possessing intoxicating liquor in local option territory for the purpose of sale, and they appeal.
Reversed with directions.
Moore & Pittman, of Liberty, for appellants.
A. E Funk, Atty. Gen., and Zeb A. Stewart, Asst. Atty. Gen., for appellee.
Etta and Charles DeAttley were convicted of having intoxicating liquor in their possession in local option territory for the purpose of sale, and the punishment of each was fixed at a fine of $100 and imprisonment in jail for thirty days. They assign three grounds for reversal of the judgment; 1. the verdict is not supported by the evidence; 2. the insufficiency of the affidavit upon which the search warrant was issued; 3. the court failed to properly instruct the jury. Since we have concluded that the first ground is well-taken, it will not be necessary to consider the other two.
Appellants are husband and wife and operated a small country store in Casey County and lived in a room immediately adjoining the store. The sheriff, acting under a search warrant, found in a clothes closet in the couple's bedroom two pints of whiskey and a third pint bottle which was from a fourth to a half full. The search further revealed three cases of empty beer bottles and some empty beer cans which were found in an old building near the store, all but one room of which were unlocked and open to the public traveling the near-by road.
Both appellants testified that the whiskey belonged to the husband, who used it for medicinal purposes, and that it was not kept for sale. The uncontradicted testimony of the husband is that he bought the whiskey from a liquor store in Lexington. Dr. H. C. Dye testified Charles DeAttley was a liquor addict and that when without it 'he is wild with nervousness so I prescribed small quantities of it to settle his nerves'. The doctor's testimony was weakened somewhat by the admission on cross-examination that he had served a prison term for distributing morphine illegally.
The only testimony introduced by the Commonwealth was that this small amount of whiskey and the empty beer bottles and cans were found when the search was made, followed by some eight or ten witnesses who testified that appellant...
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Howard v. Com.
...393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Adkins v. Commonwealth, 313 Ky. 110, 230 S.W.2d 453 (1950); DeAttley v. Commonwealth, 310 Ky. 112, 220 S.W.2d 106 (1949). We conclude that the arresting officer had no probable cause for stopping the appellant and, even if he had stopped hi......
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...for trafficking in liquor and we have held such evidence, standing alone, is insufficient to sustain a conviction. De Attley v. Commonwealth, 310 Ky. 112, 220 S.W.2d 106, and Sullivan v. Commonwealth, 304 Ky. 780, 202 S.W.2d Wherefore, the motion for an appeal is sustained, the judgment is ......
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...Cravens v. Commonwealth, 205 Ky. 738, 266 S.W. 625; Gossett v. Commonwealth, 274 Ky. 215, 118 S.W. 2d 528; De Attley v. Commonwealth, 310 Ky. 112, 220 S.W. 2d 106, 107. In the De Attley case, the arresting officer found two pints of whiskey and a third pint bottle which was about one third ......
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