Cardwell v. Commonwealth
| Decision Date | 19 December 1930 |
| Parties | Cardwell v. Commonwealth. |
| Court | United States State Supreme Court — District of Kentucky |
2. Criminal Law. — Jury are the judges of credibility of the witnesses.
3. Criminal Law. — On trial for false swearing in prior prosecution, pendency of prior prosecution should be proved by record, and oral testimony is incompetent.
4. Criminal Law. — Admission of oral testimony of pendency of prosecution in which defendant was charged with swearing falsely is not error available on appeal, where defendant did not object but testified that such prosecution was pending.
5. Criminal Law. — On trial for false swearing, evidence of defendant's admission that bottle contained whiskey was sufficient corroboration of testimony to that effect.
6. Criminal Law. — On trial for false swearing, evidence of defendant's intoxication at time to which false testimony related did not call for instruction as to intoxication as excuse.
Appeal from Butler Circuit Court.
BRATCHER & MOORE for appellant.
J.W. CAMMACK, Attorney General, and HOWARD SMITH GENTRY for appellee.
Affirming.
The appellant, Alex Cardwell, was indicted in the Butler circuit court and accused of committing the offense of false swearing in his testimony at the trial of a prosecution pending in that court, of Commonwealth v. Sam Garner, in which the latter was charged with a second commission of a violation of our Prohibition Statute (Laws 1922, c. 33), which made it punishable as a felony. At appellant's trial the jury found him guilty of the false swearing with which he was accused in the indictment, and punished him by confinement in the penitentiary for one year. His motion for a new trial was overruled, and from that order and the judgment pronounced on the verdict he prosecutes this appeal, urging, through his counsel, as prejudicial errors entitling him to a reversal: (1) The insufficiency of the evidence to sustain the conviction; (2) improper admission of evidence introduced by the commonwealth, and (3) failure of the court to instruct the jury upon the whole law of the case.
The disposition of ground (1) and also, perhaps, that of the other two, requires that a substantial synopsis of the evidence be made. The whisky with which Sam Garner was charged as unlawfully possessing under the indictment for his second offense under our Prohibition Statute was about one-half pint of white moonshine liquor contained in a pint bottle, and the proven place of such possession was at the country store of Jim Phelps, located in Butler county, and to which the appellant, Cardwell, accompanied him on that occasion, and both were to some extent intoxicated. While they were there the bottle was produced by Garner, and appellant took a drink of it and the two offered Phelps a drink, but he declined. At the same time both of them stated to Phelps (as he testified) that the contents of the bottle was "white mule whisky" At the trial of Garner both he and appellant, Cardwell, testified that, notwithstanding the testimony of Phelps as above indicated, the contents of the bottle referred to by him was not intoxicating liquor, but was gasoline that Garner had put into the bottle for the purpose of using in cleaning some of his soiled clothing and which his sisters-in-law, who were to do the cleaning, had requested him to obtain. Notwithstanding that testimony, so given by Garner and appellant at the former's trial, he was convicted and sentenced to serve a term in the penitentiary, but, before he was carried to prison by the sheriff of the county, he appeared before the grand jury and procured this indictment against appellant by testifying before it that both his testimony, and that of appellant at Garner's trial, that the contents of the bottle was gasoline and not whisky, was false and known to be so by both of them, since the contents was whisky, and that some of the whisky that had been in the bottle had been consumed by him and appellant before they arrived at the store of Phelps.
Appellant on the instant trial introduced two sisters-in-law of Sam Garner who testified that on one occasion about the time when appellant and Garner were at the store of Phelps, the two did bring to their home a bottle containing gasoline to be used by them for the purpose hereinbefore stated, but they testified that such transaction occurred a few days before the death of their father who was then extremely ill and not expected to live. Phelps was introduced in rebuttal and testified that the occasion...
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