Bowling v. Commonwealth

• Decision Date: 17 January 1922
• Citation: 237 S.W. 381,193 Ky. 642
• Parties: BOWLING v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

237 S.W. 381

193 Ky. 642

BOWLING v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 17, 1922

Appeal from Circuit Court, Nelson County.

Alonzo Bowling was convicted of unlawfully manufacturing intoxicating liquors, and appeals. Affirmed.

Nat. W Halstead, of Bardstown, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SETTLE J.

Under an indictment returned against him by the grand jury, the appellant, Alonzo Bowling, was tried and convicted in the Nelson circuit court of the offense of unlawfully manufacturing spirituous, vinous, and malt liquors, to wit whisky, "to be used for beverage purposes, and not to be used for sacramental, medicinal, scientific, or mechanical purposes." By verdict of the jury and the judgment entered by the court thereon his punishment was fixed at a fine of $200 and 30 days' imprisonment in jail. He duly filed in the court below a motion and grounds for a new trial, the overruling of which motion resulted in this appeal.

The grounds urged by appellant's counsel for the reversal of the judgment of conviction will be considered in the order in which they appear in his brief. The first is that the trial court erred to the appellant's prejudice in overruling his demurrer to the indictment; it being insisted that it charged more than one offense, which required the court, by sustaining the demurrer, to compel an election by the commonwealth as to which of the offenses charged against him it would prosecute. It is undeniably true that the indictment charges at least two of the numerous offenses defined and made punishable by chapter 81, § 1, Acts General Assembly 1920; that it is not only therein charged that the appellant did "unlawfully manufacture," but also that he did "have in possession and keep for sale," spirituous, etc., liquors, both that manufactured and that kept for sale "to be used for beverage purposes and not to be used for sacramental, medicinal, scientific, or mechanical purposes," each of which alleged violations of the statute constituted a distinct offense. But, while the demurrer of the appellant to the indictment properly raised the question of misjoinder, and, if sustained, would have compelled the commonwealth either to elect to prosecute him for one of either of the offenses charged, or dismiss the indictment, it nevertheless is true that the overruling of the demurrer by the trial court was not prejudicial to any substantial right of the appellant, for we discover from an order contained in the record that, after the filing of the demurrer, but before the court took any action thereon, the commonwealth made and announced its election to prosecute the appellant for the offense of unlawfully manufacturing spirituous liquors as alleged in the indictment, which was one of the offenses therein charged, and likewise the offense for which he was tried and convicted. It further appears from the order referred to that, when acted upon, the demurrer was overruled. It is patent from these facts shown by the record that the election made by the commonwealth accomplished all that could have been effected by sustaining the demurrer and rendered the overruling of same necessary. Hence it follows that, by the course thus pursued, the appellant was as fully advised before the trial of the character of the offense for which he would be, and in fact was, prosecuted as if the election thereof by the commonwealth had been compelled by sustaining the demurrer to the indictment. Mobley v. Commonwealth, 190 Ky. 424, 227 S.W. 584; Ellis v. Commonwealth, 78 Ky. 130. Therefore the appellant's contention that the overruling of his demurrer to the indictment was such error as entitles him to a reversal of the judgment is wholly without merit.

As by the second ground urged for reversal of the judgment the refusal of the trial court to direct a verdict of acquittal at the conclusion of the evidence is assigned as error, and that assigned in the fifth ground is the admission by that court of alleged incompetent evidence on the trial, and both contentions must be determined by the legal effect to be given the evidence, the two grounds will be considered and disposed of together. The first of these contentions is based on the theory that the evidence relied on to establish the appellant's guilt, even if its competency be admitted, wholly failed to do so. The theory underlying the other contention is that, as the peace officers and posse by whom were discovered and destroyed the still, paraphernalia, and ingredients then being used in producing the whisky, alleged in the indictment to have been unlawfully manufactured by the appellant, were not at the time in possession of a warrant conferring upon them lawfully authority to search for or seize the property mentioned, neither the property in question, their testimony respecting its discovery and character, nor their testimony tending to connect appellant with its use in manufacturing whisky was competent as evidence.

We can find no good reason for sustaining either of the above contentions. As to the first, it is sufficient to say that a mere statement of the salient features of the evidence will show it was sufficient, if competent, to require its submission to the jury, and also to authorize the verdict that resulted from such submission. The evidence substantially, was as follows: The county attorney and a deputy sheriff of Nelson county having received information that "moonshine" whisky was being manufactured in the county and in the vicinity where the distillery in question was discovered by some unknown person or persons, after a consultation between them regarding same, went, accompanied by a second deputy sheriff and a posse of three or more men summoned by one of the deputy sheriffs, upon a tour of...