Brown v. Com.

• Citation: 378 S.W.2d 608,14 A.L.R.3d 1330
• Parties: Grant BROWN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 24 April 1964
• Court: United States State Supreme Court — District of Kentucky

Page 608

378 S.W.2d 608

14 A.L.R.3d 1330

Grant BROWN, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

April 24, 1964.

Daniel J. Tribell, William S. Tribell, Middlesboro, for appellant.

Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.

STEWART, Judge.

Grant Brown, Jr., was convicted in Rockcastle Circuit Court of a third violation of the local option law and his punishment was fixed at confinement in prison for one year. See KRS 242.990(1).

He appeals, contending: (1) The search of the automobile driven by him was illegal and, as a consequence, the evidence obtained thereby was inadmissible; (2) the indictment was defective for reasons hereinafter asserted; (3) the evidence introduced was insufficient to convict; and (4) the instructions did not properly present to the jury the offenses for which he was being tried.

We shall first discuss the fourth or last ground urged for the reversal of the judgment because the assignment of error in connection therewith is meritorious. The other grounds will be dealt with briefly, in reverse order, as there will undoubtedly be another trial.

The instructions were prejudicially erroneous because they did not state and therefore did not permit the jury to pass upon the question of whether appellant had been convicted twice before of similar offenses involving violations of the local option law, with the result that they were asked to determine he had perpetrated a felony, within the purview of KRS 242.990(1), if they believed he was guilty only of the particular crime of which he was presently charged.

Proper instructions, where one is indicted as a third offender involving similar misdemeanors, and there is evidence supporting the accusation, should permit the jury to return possible verdicts of guilty or not guilty of the primary crime charged; or guilty or not guilty of the second or third offense violations; or of any combination of the three. See Tuttle v. Commonwealth, Ky., 331 S.W.2d 891, 893, and the other cases cited therein on this point.

The next contention that the evidence introduced did not warrant a finding by the jury that Brown committed the offense of which he was accused is not tenable. Succinctly stated, the testimony reveals Brown together with Thurman Miller, Kenneth Locke and Mildred Jones went by automobile to Cincinnati, Ohio, where they stayed three days and two nights. According to Brown's testimony, on the return trip while he and Mildred Jones were eating in a restaurant in Covington, Locke, accompanied by Miller, bought and loaded into the trunk of the car approximately 20 cases of beer. Later, on their way home, while Brown was driving, the vehicle was stopped by a state trooper in Rockcastle County, Brown was placed under arrest for a traffic violation, and the beer was discovered when the car was searched. Brown claimed he did not know of the beer in the trunk, and Locke and Miller testified the beer belonged to them.

Upon the basis of the evidence recited, which was not contradicted, Brown maintains the jury should have been directed peremptorily to release him. However, two prior convictions of Brown in Bell County, on charges similar to the one for which he is now under indictment, were proven in support of the allegation in the indictment that he was a third offender; and, in addition, as provided by KRS 242.390, the Commonwealth established his reputation was bad for trafficking in or keeping for sale alcoholic beverages in dry territory.

In Denham v. Commonwealth, 311 Ky. 320, 224 S.W.2d 180, in a prosecution for a third violation of the local option law, it was held the jury was not compelled to accept the mere statement of a third person that certain moonshine whisky was not that of the accused, but that they could consider all the surrounding circumstances, as well as the accused's reputation for handling whisky, in arriving at their verdict. Under the authority of this case we conclude the evidence sustains the verdict.

Brown insists the indictment is defective for a twofold reason, namely, because it failed to allege the crime was committed in local option territory and because it did not properly set forth a third offense violation of the local option law.

It is true the indictment as originally drawn did not contain, either in the accusatory or the descriptive...