Craft v. Commonwealth

• Decision Date: 31 October 1922
• Citation: 244 S.W. 696,196 Ky. 277
• Parties: CRAFT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

244 S.W. 696

196 Ky. 277

CRAFT v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 31, 1922

Appeal from Circuit Court, Floyd County.

Ellis Craft was convicted of unlawfully transporting spirituous liquors, and he appeals. Reversed and remanded.

B. M James, of Prestonsburg, for appellant.

Chas I. Dawson, Atty. Gen., and Chas. W. Logan, Asst. Atty. Gen for the Commonwealth.

SETTLE J.

The appellant, Ellis Craft, following his indictment in the Floyd circuit court for unlawfully transporting spirituous liquors was tried and convicted of the offense in that court, and his punishment fixed by verdict of the jury and judgment of the court at a fine of $175 and confinement of 30 days in jail. He insists upon this appeal that he was convicted under an indictment that was fatally defective and upon incompetent evidence, and that he should have been acquitted by a directed verdict.

The objection respecting the alleged insufficiency of the indictment raised by the appellant's demurrer to same was that, in attempting to negative the exceptions contained in the statute that permit the transporting of such liquor for "sacramental, medicinal, scientific or mechanical purposes," the indictment omitted the word "purposes." The objection is highly technical and, we may add, trivial. The word omitted is so well known to be a part of the exception in the statute, and its omission so palpably a mistake of the draftsman of the indictment, that the appellant could not have been misled by its absence therefrom. He could not have failed to understand from the allegations of the indictment the offense with which he was thereby charged, or that if the liquor was transported by him for any of the uses mentioned in the exception, proof thereof by him would result in his acquittal. It is therefore concluded that he could not have been prejudiced in any substantial right by the defect in the indictment complained of. Crim. Code, § 122, subsec. 2; Walker v. Commonwealth, 193 Ky. 656, 237 S.W. 369; Arnold v. Commonwealth, 194 Ky. 421, 240 S.W. 87.

The appellant's second complaint presents a more serious question. It appears from the testimony of the officer and some of the posse by whom he was arrested that the "moonshine" whisky found in his possession was concealed in a suit case owned by him, and discovered by a search made of the suit case by them. The witnesses, or some of them, also testified that the search of the suit case resulting in the discovery of the whisky was made by virtue of a search warrant issued for that purpose by Judge Hill county judge of Floyd county, a few minutes before the discovery of the whisky in the suit case. The search warrant was not produced or put in evidence on the appellant's trial, though the witnesses were allowed to freely testify as to when it was issued and as to its contents. The appellant specifically objected to all evidence regarding the search warrant, and also as to the discovery and seizure of the whisky thereunder; but all these objections were overruled by the court, to each of which rulings the appellant duly excepted. Epp Lafferty, town marshal of Prestonsburg, by whom the search warrant was procured and executed, testified that he returned it to the county judge. The only attempt that was made to account for the absence of the search warrant or the failure of the commonwealth to introduce it in evidence was by the following last and leading question put to Epp...