French v. Com.

• Decision Date: 19 January 1923
• Citation: 198 Ky. 512,249 S.W. 761
• Parties: FRENCH ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

249 S.W. 761

198 Ky. 512

FRENCH ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 19, 1923

Rehearing Denied April 20, 1923.

Appeal from Circuit Court, Madison County.

E. B French and others were convicted of unlawfully possessing intoxicating liquors, and they appeal. Affirmed.

Burnam & Greenleaf, of Richmond, for appellants.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

SAMPSON C.J.

Appellants French, Farmer, and Casteel, were indicted and convicted in the Madison circuit court of the offense of unlawfully having in possession intoxicating liquors. Their motion and grounds for new trial being overruled, they prosecute this appeal relying upon four grounds: (1) Absence of evidence showing appellants' guilt; (2) only one of the defendants could have been guilty of the offense charged, although all three were convicted; (3) incompetent evidence, admitted over the objection of appellants, tending to show the commission of another offense by one of the appellants; (4) appellants were each required to testify for the commonwealth in this prosecution, and therefore were immune from prosecution under section 6 of the Prohibition Act of 1922 (Acts 1922, c. 33).

1. Appellant Farmer owned and had in his possession an automobile, which he was driving on the streets of Berea, Madison county, when the other two appellants entered the car and drove through the streets at a rapid rate, as contended by the commonwealth. The police officers, observing, as they say, the great speed of the car in which appellants were riding, and that it was exceeding the speed limit of that city, started in pursuit and arrested appellants just outside the city limits, where appellants' car had stopped for the purpose of making some repairs, as stated by appellants. After arresting appellants, the officers in looking around the car found a small quantity of intoxicating liquor in a bottle or jar underneath the car, on the ground, with the cap of the vessel lying on the hood of the car. This liquor the officers took in charge and carried it, with the appellants, before the police court. In the police court each of the appellants was called by the commonwealth as a witness, and examined and cross-examined, to determine whose liquor that was which the officers found; but each of the appellants denied ownership of the liquor or any knowledge of how it came to be where it was at the time the officers found it, or any knowledge whatever concerning the liquor. They were then held to the grand jury, and were later indicted, tried, and convicted in the Madison circuit court. While the evidence was not direct and absolutely certain, but rather circumstantial, it was sufficient to carry the case to the jury and support the verdict.

2. As Farmer was the sole owner and driver of the car in which they were riding, it is insisted by appellants that he alone could be guilty of possessing the liquor, if it were possessed by either. We cannot, however, give our assent to this narrow construction in view of the state of the record. If, as the jury may have believed, appellants jointly owned and possessed the liquor and took it with them in the car for the purpose of drinking or otherwise using it for their joint benefit, they were all guilty of the offense of possessing intoxicating liquors. In the absence of a definite showing that one or the other of appellants had possession and control over the liquor to the...