Brooks and Minton v. Commonwealth

• Decision Date: 20 January 1925
• Citation: 206 Ky. 720
• Parties: Brooks and Minton v. Commonwealth.
• Court: Kentucky Court of Appeals

206 Ky. 720

Brooks and Minton v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 20, 1925.

Appeal from Edmonson Circuit Court.

B. M. VINCENT and M. M. LOGAN for appellants.

FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE SETTLE — Affirming as to Brooks and reversing as to Minton.

The appellants, Asa Brooks and Claude Minton, were jointly indicted, tried and convicted in the Edmonson circuit court of the offense of unlawfully having in their possession intoxicating liquors, not for medicinal, mechanical, scientific or sacramental purposes, and the punishment of each fixed by verdict of a jury and judgment of the court at a fine of $100.00 and thirty days in jail. Both have appealed.

It is urged that the judgment should be reversed as to each of them because of error alleged to have been committed by the trial court: (1) In overruling their joint and several motion for an instruction directing their acquittal by verdict of the jury; (2) in allowing incompetent evidence in behalf of the Commonwealth; (3) in improperly instructing the jury.

The first of these contentions rests upon the theory that the evidence of the Commonwealth wholly failed to prove the appellants or either of them guilty of the offense charged. The evidence in behalf of the Commonwealth was furnished by the testimony of Mrs. Ella Webb, wife of Rufe Webb, and their son Oscar Webb. Mrs. Webb testified that the appellants, Asa Brooks and Claude Minton, together with John W. Brooks, came to her home and inquired for her husband, Rufe Webb, who entered the front room of the house, where they were immediately after their arrival, and upon meeting them asked the appellant, Asa Brooks, if he had a drink? The latter answered "no," but at once further answered "I have," the last answer being immediately followed by his pulling out a bottle, which the witness supposed to be whiskey, and this bottle he handed to Rufe, who took a drink from it and returned it to Asa Brooks, whereupon the latter handed the bottle to Claude Minton, who drank from it and returned to him the bottle. What thus transpired was seen and heard by the witness from the rear room through the door between the two rooms, which remained open. She was unable to say whether John W. Brooks was offered or took a drink from the bottle, as he was standing behind the other men and where she could not see him.

On cross-examination she admitted that she did not smell the contents of the bottle from the room she was in, but said it looked like white whiskey. She also admitted that if her husband was under the influence of whiskey after drinking from the bottle, she could not tell it as he was not in the house much during the day.

Oscar Webb, son of Ella and Rufe Webb, who was admittedly present on the occasion in question, not only fully corroborated his mother's testimony in every particular, but in addition gave other testimony of a more positive and definite character with respect to the contents of the bottle from which the parties drank and their conduct after drinking therefrom, for he testified that the bottle from which they drank did contain whiskey, and asked whether or not his father and "these other fellows were under the influence of whiskey and drinking at that time" his answer was, "We...