Frey v. Commonwealth

• Citation: 184 S.W. 896,169 Ky. 528
• Parties: FREY v. COMMONWEALTH.
• Decision Date: 18 April 1916
• Court: Kentucky Court of Appeals

184 S.W. 896

169 Ky. 528

FREY v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 18, 1916

Appeal from Circuit Court, Ohio County.

Bruno Frey was convicted of having in his possession intoxicating liquors in a territory where the local option law was in force with intention to sell them, and he appeals. Affirmed.

W. H Barnes and Heavrin & Kirk, all of Hartford, for appellant.

C. E Smith, of Hartford, James Garnett, of Louisville, M. M Logan, Atty. Gen., and Overton S. Hogan, Asst. Atty. Gen., for the Commonwealth.

THOMAS J.

On June 9, 1915, Clyde Magan, E. F. Cook, and C. F. Boswell, all citizens and residents of Ohio county, in this state, subscribed and swore to an affidavit before John B. Wilson, county judge of the county, charging the appellant, Bruno Frey, with having in his possession intoxicating liquors in a territory where the local option law was in force and effect, with the intention of selling same contrary to the provisions of the local option law, and describing the premises of the appellant as is required by section 2572b of the Kentucky Statutes, whereupon the county judge in accordance with subdivision 1 of the section, issued a warrant, directed to the sheriff of the county, authorizing him to make search of the premises described in the affidavit and to take charge of any intoxicating liquors which he might find therein. The warrant furthermore directed the sheriff, that if such liquors were found on the premises, to arrest the appellant and bring him before the county judge to be dealt with according to law. The search resulted in the finding of 9 barrels of grape wine, each barrel containing about 50 gallons, and all located in a cellar under the residence of appellant. This was taken charge of and delivered into the custody of the county judge. The appellant was also arrested and brought before the court, and before his trial the warrant was amended so as to charge him with having in his possession intoxicating liquors for the purpose of selling same in a territory where the local option law was in force. A plea of not guilty was entered, and upon trial the appellant was found guilty, and from the judgment rendered upon that verdict he appealed to the Ohio circuit court. He was tried in that court on October 20, 1915, and was found guilty by the jury; it fixing his punishment at a fine of $100 and confinement in the county jail for 20 days. His motion for a new trial having been overruled, he prosecutes this appeal.

Numerous grounds are relied upon for a reversal, all of which we will endeavor to consider in the progress of this opinion, without a numerical statement of them.

It is insisted that the demurrer to the warrant as amended should have been sustained. This insistence is made because in the original warrant there was no specific charge made against the appellant, but it only directed the sheriff to arrest him, should intoxicating liquors be found upon the premises, and to return him before the county judge "to be dealt with according to law." Before the trial, and before the filing of the demurrer, the warrant was amended, so as to charge him with the offense of having in his possession for the purposes of sale intoxicating liquors in violation of the local option law; the language of the amendment, omitting the caption, being as follows:

"Comes the commonwealth of Kentucky, plaintiff, and by leave of court amends its warrant herein, and by way of such amendment states that there are reasonable grounds for believing that the defendant, Bruno Frey, has committed the offense of having in his possession June 9, 1915, spirituous, vinous and malt liquors, to wit, wine, for the purpose of sale in Ohio county where the local option laws prohibiting the sale of spirituous, vinous, malt and other intoxicating liquors are in full force and effect. Wherefore it prays as in its original warrant."

From this it will be seen that the charge is in language almost, if not quite, sufficiently specific to be good in an indictment, notwithstanding it has been many times decided by this court that the charge in a warrant of such offenses as can be prosecuted under the law by such process need not be stated with the technical accuracy required in an indictment. City of Louisville v. Wehmhoff, et al., 116 Ky. 812, 76 S.W. 876, 79 S.W. 201, 25 Ky. Law Rep. 995; Commonwealth v. Leak, 116 Ky. 540, 76 S.W. 368, 25 Ky. Law Rep. 761. In the latter case, upon the point under consideration, this court said: "The same technical strictness is not required in a proceeding by warrant as by indictment, and ordinarily a warrant in the form prescribed by the Code sufficiently describes the offense; but, if made to appear to the satisfaction of the court that a defendant cannot intelligently make defense, it should be made more specific."

This excerpt from the Leak Case was quoted with approval by this court in the Wehmhoff Case, supra. Upon the question of the right of the commonwealth to amend the warrant, this court in that case said:

"In Commonwealth v. Robert Van Meter, MS., by Judge Cofer, decided in 1876, this court held that a warrant issued in a misdemeanor case not requiring an indictment could be amended, when it was not sufficiently specific, and that the amendment could be made in the circuit court after the appeal there, inasmuch as it would not have changed the prosecution."

In view of these authorities, we are unable to agree with appellant in this contention.

It is insisted that upon the trial the court permitted incompetent evidence to be introduced by the commonwealth over the objection of appellant. The testimony objected to consisted of that of several witnesses to the effect that within 12 months preceding the issuing of the warrant, they had seen numbers of persons going to the house of appellant while in a sober condition, and within a short while thereafter returning therefrom in an intoxicated condition. Some of the witnesses...