Craft v. Commonwealth

Decision Date31 October 1922
Citation244 S.W. 696,196 Ky. 277
PartiesCRAFT v. COMMONWEALTH.
CourtKentucky Court of Appeals

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...

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27 cases
  • Acree v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • 25 de março de 1932
    ...others present at the time disclosing the result of their search thereunder. Wilson v. Com., 228 Ky. 517, 15 S.W. (2d) 422; Craft v. Com., 196 Ky. 277, 244 S.W. 696; Danella v. Com., 207 Ky. 660, 269 S.W. 1011; Eaves v. Com., 241 Ky. 140, 43 S.W. (2d) 528, and cases The rule is, where the p......
  • Eaves v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • 17 de novembro de 1931
    ... ... [43 S.W.2d 529] ... upon [ Wilson v. Com., 228 Ky. 517, 15 S.W.2d 422]; ... if it was lost, to account for its loss and prove its ... contents by competent evidence. If it fails in both ... particulars, the evidence thus introduced should not be ... considered. Craft v. Com., 196 Ky. 277, 244 S.W ...          Also ... she requested at the close of the evidence of the ... commonwealth a peremptory instruction be given to the jury ... The court refused to give it. Thereupon she testified and ... introduced other witnesses. By the testimony of ... ...
  • Eaves v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • 17 de novembro de 1931
    ...its contents by competent evidence. If it fails in both particulars, the evidence thus introduced should not be considered. Craft v. Com., 196 Ky. 277, 244 S.W. 696. Also she requested at the close of the evidence of the commonwealth a peremptory instruction be given to the jury. The court ......
  • Minx v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • 10 de maio de 1940
    ...person, could be lawfully searched or seized without a valid search warrant, following a specific affidavit as its basis. In Craft v. Com., 196 Ky. 277, 244 S.W. 696, we reviewed the Youman case, and held that where the testimony in respect of the search and seizure is objected to, oral tes......
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