Duckwall v. Commonwealth

• Decision Date: 23 September 1924
• Citation: 204 Ky. 442,264 S.W. 1062
• Parties: DUCKWALL v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

264 S.W. 1062

204 Ky. 442

DUCKWALL v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 23, 1924

Appeal from Circuit Court, Jefferson County, Criminal Division.

Richard Duckwall was convicted of unlawful possession of intoxicating liquors, and appeals. Affirmed.

Roscoe Conkling and J. J. McTighe, both of Louisville, for appellant.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

CLAY J.

Appellant was convicted of the unlawful possession of intoxicating liquors.

The evidence is as follows: About 4 a. m., September 25, 1923, a search was made of appellant's premises. No liquor was found in his dwelling house, but on the second floor of the two-story garage located on the rear of the lot, the officers found a 50-gallon still in operation, 19 barrels of moonshine, one pint of moonshine whisky, and certain paraphernalia used in manufacturing whisky. The still itself was warm and steaming. On the first floor of the garage there were several 10-gallon kegs. One of the officers testified that appellant's reputation among his neighbors was that of a bootlegger and whisky runner. According to appellant, he occupied only the lower east side of the garage, and the balance of the building was rented to one, Fred Adams. In support of this defense he offered receipts for the rent purporting to have been signed by his wife in favor of Fred Adams, and another witness testified that he was present on one occasion, and saw Fred Adams pay Mrs. Duckwall $12, and take a receipt therefor. Appellant also claimed that he had been absent from the premises for about three weeks before the search.

It is first insisted that the court erred in admitting evidence of the presence of the moonshine still, as this evidence tended to show that he was guilty of another crime. We need go no further than to say that the evidence was admitted without objection, and the error, if any, is not therefore available on appeal. Thomas v. Commonwealth, 146 Ky. 790, 143 S.W. 409.

The principal contention of appellant is that the court erred in refusing him a new trial on the ground of newly discovered evidence. His affidavit in support of the motion was to the effect that certain witnesses would testify that they had seen Fred Adams in the yard going to and from the garage, and that the garage was not used by appellant, but was used by the man to whom the garage was rented.

The motion...