Eaves v. Commonwealth

• Decision Date: 17 November 1931
• Citation: 241 Ky. 140,43 S.W.2d 528
• Parties: EAVES v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

43 S.W.2d 528

241 Ky. 140

EAVES v. COMMONWEALTH.

Court of Appeals of Kentucky

November 17, 1931

Appeal from Circuit Court, Hopkins County.

Mattie Eaves was convicted for unlawfully having in her possession spiritous liquors, and she appeals.

Affirmed.

James W. Powell, of Madisonville, for appellant.

J. W Cammack, Atty. Gen. (Basil P. Cooper, of Frankfort, of counsel), for the Commonwealth.

RICHARDSON J.

Mattie Eaves was indicted, tried, and convicted for the second offense of unlawfully having in her possession spiritous liquors; she having been previously convicted for the same offense in the Hopkins quarterly court. Her punishment was fixed under section 2554a-2, Ky. Statutes, by the verdict of the jury at confinement in the penitentiary for a period of one year; judgment was accordingly entered, from which she appeals.

On the day it is charged the offense was committed, she was at her home; she called some one by telephone and engaged with the person in a conversation. In the conversation, she said "Five wants to go, forty minutes."

Shortly thereafter two men came in an alleyway to her back door brought with them, in grips, five gallons of liquor in glass jugs, and then departed. Within a short time thereafter Elmer Beeny, a deputy sheriff, Dick Crofton, Floyd Wilkey, and Elmer Todd, who were also arresting officers, with a search warrant in their possession, went to her home and searched it for intoxicants. The appellant was at her home when they arrived; they read the search warrant to her and searched her home, finding the five gallons of whisky and a small amount of home-brew. At that time her general reputation among her neighbors and acquaintances was that she was engaged in bootlegging.

Her defense was a denial, not only of her having possession of the whisky, but she denied that she was at home until some time after the officers had entered and discovered the presence of the whisky. Her testimony is corroborated by that of Curtis Eaves, Gillis Civillis, Elsie Graves, and Mabel Burbridge. The record of her first conviction of the identical offense was shown at the time of the trial, and is not now disputed.

For reversal it is insisted that incompetent evidence in behalf of the commonwealth was admitted; that the entry of the officers into her home was illegal; that the court erred in his instructions to the jury; that a peremptory instruction should have been given to the jury to find her not guilty that the verdict is not sustained by the evidence.

While the deputy sheriff, Beeny, was on the witness stand for the commonwealth, inquiry was made of him as to the whereabouts of the search warrant by virtue of which he searched appellant's home. It was thereupon presented to him, and he identified it as the search warrant under which he was acting. The defendant objected to his identification of the search warrant and to his statement that her home was searched by virtue of it. Her objections were overruled, to which she excepted. The record discloses that the search warrant was neither offered to be read, nor was it read, to the jury. At the conclusion of the evidence of the commonwealth, she moved to have excluded from the jury the testimony of the officers showing their search of her home and the finding of the whisky and home-brew thereat by them.

It was incumbent upon the commonwealth to produce the search warrant relied 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. 696.

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 herself and that of the other witnesses in her behalf, it is shown that the five gallons of whisky were in her home.

In the case of Shepherd v. Com., 240 Ky. 261, 42 S.W.2d 311, 313, it was written: "It is a fixed rule of practice that, after making a motion for a peremptory instruction at the close of the commonwealth's evidence and the motion is overruled, any essential fact necessary to convict the defendant may be established by testimony in his behalf, and he cannot complain that the motion was overruled, or that the commonwealth failed to make out its case by testimony produced by it. Minniard v. Com., 214 Ky. 641, 283 S.W. 1001; Brittian v. Com., 200 Ky. 461, 255 S.W. 59; Marcum v. Com., 201 Ky. 527, 257 S.W. 714; Cardwell v. Com., 236 Ky. 676, 33 S.W.2d 695."

The evidence in her behalf shows her presence and the presence of the whisky in her home....