Brent v. Commonwealth

• Decision Date: 21 April 1922
• Citation: 240 S.W. 45,194 Ky. 504
• Parties: BRENT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

240 S.W. 45

194 Ky. 504

BRENT v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 21, 1922

Appeal from Circuit Court, Nelson County.

Lee Brent was convicted of having in his possession an illicit still, and he appeals. Affirmed.

Nat. W Halstead, of Bardstown, for appellant.

Chas I. Dawson, Atty. Gen., Thos. B. McGregor, Asst. Atty. Gen J. Lewis Williams, of Glasgow, and E. N. Fulton, of Bardstown, for the Commonwealth.

MOORMAN J.

Appellant, Lee Brent, was indicted in the Nelson circuit court for unlawfully and willfully having in his possession an illicit or "moonshine" still. He was convicted and his punishment fixed at fine of $500 and confinement in the jail of Nelson county for three months.

Appellant resided about four miles from Bardstown, and, in July, 1921, a posse composed of citizens of Bardstown, without a warrant of any kind, drove in automobiles to his place and, leaving their machines on the roadside, walked in the direction of his residence, turned to the left and followed an unused road leading away from his residence for a distance of several hundred yards, where they discovered in a ravine evidence of a still. They proceeded up the ravine which was not heavily timbered for some distance, and there discovered an illicit still in full blast. After exchanging shots with some persons who were at the still and who fled, the equipment of the still was destroyed. It appears that the still was about 350 or 400 yards from appellant's residence; that it could be seen from his residence; and that it was on his land. It also appears that, as the party proceeded towards the still, three shots were fired from the rear of appellant's residence, presumably for the purpose of warning the operators of the still. After destroying the still, some of the party went to appellant's residence but did not enter it. It does not appear that they broke any close or that it was necessary for them to surmount any fence in reaching the still. Some evidence was secured when they returned to the vicinity of the residence but that evidence was slight and its admission was not prejudicial, in view of the other evidence offered which, if competent, amply sustained the verdict.

The first assignment of error is that the lower court erred in overruling the demurrer to the indictment and refusing, at the conclusion of the commonwealth's evidence, to direct a verdict for appellant.

The argument on this point is that the act of the Legislature, approved March 23, 1920 (Acts of 1920, page 377), known as the Prohibition Act of 1920, superseded all other laws on the subject, and, since the offense for which appellant was convicted is not denounced by that act, neither the indictment nor the conviction is valid. This contention is not sustainable. The indictment was founded on section 2572c8, vol. 3 of Kentucky Statutes, 1918 (an act of the Legislature of March 29, 1918, being section 2554d1 of Carroll's Kentucky Statutes [6th Ed.] 1922). The act of March 23, 1920, by its title purports to prohibit the manufacture, sale, or transportation or other distribution of spirituous, vinous, or intoxicating liquor, but neither by its title nor in its context does it deal with the offense for which appellant was convicted, that of unlawfully having in his possession an illicit or "moonshine" still.

The act of March 23, 1920, is exclusive as to offenses, acts, and regulations with which it purports to deal, but the subject of the unlawful possession of an illicit or "moonshine" still is not included within its scope, and that part of the act of March 29, 1918 (section 2554d1, Carroll's Kentucky Statutes [6th Ed.] 1922), which deals with that subject has not been repealed or superseded by the later act. Walker v. Commonwealth of Kentucky, 192 Ky. 257, 232 S.W. 617, relied on by appellant, is inapplicable. In that case the conviction was had under an indictment for the unlawful sale of spirituous liquor. The sale was made February 28, 1921, after the act of March 23, 1920, went into effect. The penalty was imposed under an act of March 23, 1916 (Acts 1916, c. 53).

The indictment charged a felony, the basis of which was a previous conviction under the act of 1916. The act of March 23, 1920, being complete as to the offense with which Walker was charged and as to the penalties imposed for its commission, we held that it superseded the act of 1916, and Walker's conviction was invalid. But it does not follow that the act of 1920 repealed a statute not within its scope, such as the statute under which appellant was indicted and convicted, and Walker v. Commonwealth, supra, does not so hold.

Appellant complains of the statement of the county attorney, made at the beginning of the trial, to the effect that the evidence would show that, some time in the month of July, two officers of Nelson county were ambushed and shot while returning from a "moonshine" still. Upon objection to that statement, the trial court instructed the jury that it was competent to show the purpose in organizing the posse and that it could not be considered as evidence affecting the guilt or innocence of the accused. In view of that admonition, we are unable to see how the statement could have prejudiced appellant or affected the verdict.

Another objection advanced by appellant is that the court erred, in refusing to direct a verdict for the defendant at the conclusion of the evidence for the commonwealth, because there was a failure to show that he was the owner of the land on which the still was found, or, if that be not true, the evidence failed to show that he saw the still or knew of its location. We do not think this objection well taken. An examination of the record disproves the first proposition, or at any rate discloses evidence to the contrary. As to the second assertion, it was proved that the still was in plain view of appellant's residence and apparently had been operated for some time, was on his property, and, further, that signals of the approach of the members of the party were given from his house, all of which justifies the belief that he was fully informed as to its location and that it was so located with his knowledge and consent. It is true that a legal conviction cannot be effected, except on proof of guilt beyond a reasonable doubt, but nevertheless we have uniformly held that the credibility of the evidence is for the jury and they have the right to take into consideration all the relevant facts and circumstances in reaching their verdict, and, if there is evidence to sustain the verdict, it will not be disturbed on the ground that the guilt of the accused was not proved beyond a reasonable doubt. Gordon v. Commonwealth, 136 Ky. 508, 124 S.W. 806; Commonwealth v. Little, 140 Ky. 550, 131 S.W. 387; Peters v. Commonwealth, 154 Ky. 689, 159 S.W. 531; King v. Commonwealth, 143 Ky. 125, 136 S.W. 147; Mobley v. Commonwealth, 190 Ky. 424, 227 S.W. 584.

The instructions are complained of as erroneous. They are attacked on the sole ground that they were predicated on the act of 1918, whereas that act was repealed by the act of March 23, 1920. This contention having been disposed of, further discussion of the point in connection with the instructions is unnecessary.

The most serious contention of appellant is that the court erred in permitting the members of the posse to testify to what they observed at the time the still was discovered and destroyed, also that it was error to permit the introduction in evidence of a part of the still. This contention rests on section 10 of the Constitution which provides:

"The people shall be secure in their persons, houses, papers and possessions from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation."

This provision is similar to article 4 of the amendments to the Constitution of the United States. The reasons for the latter provision and for similar provisions in most, if not all, of the state Constitutions have been often stated by courts of last resort. To repeat those reasons would neither add to nor detract from the conclusions that we have reached. It may be stated here, however, that it settled that unwarranted search and seizure of the protected classes of property, or a search and seizure without the authority of a warrant, is tantamount to unreasonable search and seizure, and that evidence so obtained is inadmissible against him whose property has been violated.

The objects of security in section 10 of the state Constitution are the same as those in the Fourth Amendment of the Constitution of the United States, except that, in the federal Constitution, the word "effects" is used where the word "possessions" is used in the state Constitution. Whether these words, as so used, include like or different kinds of property has not been decided, but with their common purpose in view, it is not a strained construction to say that they have the same essential meaning. In either event, the determination of appellant's rights, as claimed under section 10 of the state Constitution, necessarily depends on the construction to be given the words "persons, houses, papers and possessions." It is said that "possessions" include everything that appellant had, his farm and every species of property in his actual or constructive possession. But we are cited to no case in which that term used in connection with other words of limited and restricted meaning, has been given so broad a construction. It is our opinion that the doctrine of ejusdem generis applies and that, in construing the term "possessions," we must have regard for the particular and specific...