Duke v. Commonwealth

• Citation: 256 S.W. 725,201 Ky. 365
• Parties: DUKE v. COMMONWEALTH.
• Decision Date: 14 December 1923
• Court: Court of Appeals of Kentucky

256 S.W. 725

201 Ky. 365

DUKE v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 14, 1923

Appeal from Circuit Court, Daviess County.

William Duke was convicted of the unlawful manufacture of intoxicating liquors, and appeals. Affirmed.

Louis I. Igleheart, of Owensboro, for appellant.

Thos B. McGregor, Atty. Gen., and Edward L. Allen, Asst. Atty Gen., for the Commonwealth.

THOMAS J.

The appellant, William Duke, was convicted in the Daviess circuit court on his trial under an indictment charging him and others with the offense of unlawfully manufacturing intoxicating liquors, as denounced by section 1, Acts 1922 p. 109, commonly known as the "Rash-Gullion Act." On this appeal from the judgment pronounced, after overruling his motion for a new trial, his counsel insist that he is entitled to a reversal because (1) the evidence was insufficient to sustain the conviction, and (2) the court erred in not sustaining his motion for a peremptory acquittal. A disposition of both grounds requires a consideration of the evidence introduced by the commonwealth, which was all that was heard at the trial, the defendant not testifying nor introducing any witness in his behalf, and they will be disposed of together.

Dave King held a lease on a tract of land in the county owned by Delbert Payne. A shaft had been sunk and mining operations had been carried on. King sublet the operation of the mine to M. O. Stallings, a codefendant in the indictment with appellant, and thereafter the latter, in some way not made clear by the evidence, located in the mine a still, which he subsequently operated. Stallings and his nephew, Yewell Stallings, both worked at the mining operations, and they were each introduced by the commonwealth, and testified to the operation of the still by the appellant, and his manufacturing whisky therewith. They likewise testified that neither of them was in any way interested in the still or in its operation or in its product, but that occasionally they would take a drink of the liquor. They also testified that at times when requested by appellant to do so they assisted him in lifting the still and placing it on the improvised furnace, and under the same conditions and in the same manner they assisted him occasionally to lift it off the furnace after a run had been made, and because of such assistance it is earnestly argued that both of them were guilty equally with appellant as aiders and abettors, and that under section 241 of the Criminal Code appellant cannot be convicted on their testimony, unless it was "corroborated by other evidence tending to connect the defendant with the commission of the offense." The only corroborating testimony heard upon the trial was that given by O. H. McFarland, a federal prohibition...