Johnson v. Com.
| Decision Date | 27 November 1923 |
| Parties | JOHNSON v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County.
Bud Johnson was convicted of having in possession for the purpose of sale malt and intoxicating liquor, and appeals. Reversed and remanded for new trial.
J. B Snyder, of Harlan, for appellant.
T. B McGregor, Atty. Gen., and Lilburn Phelps, Asst. Atty. Gen for the Commonwealth.
Appellant was convicted under a warrant charging him with the offense of having in his possession for the purpose of sale "malt and intoxicating liquor," and his punishment fixed at a fine of $100 and 30 days' confinement in the county jail.
The only evidence offered in support of the charge was that appellant had in his possession moonshine whisky. It is conceded that the warrant was not demurrable, but insisted that there was a fatal variance between the charge and the proof, and that the proof was insufficient to sustain the charge. While we are loath to reverse the judgment, we are unable to perceive how such a course may be avoided. As before stated, the warrant charges the possession of "malt and intoxicating liquor." The words cannot be construed as meaning "malt and other intoxicating liquor." The only construction of which they are susceptible is that appellant had in his possession for the purpose of sale malt liquor, and that this liquor was intoxicating. There was no proof of the possession of malt liquor. The evidence was confined to spirituous liquor. The warrant was not amended. That being true, the evidence was not sufficient to support the charge (Cornett v Commonwealth, 64 S.W. 415, 23 Ky. Law Rep. 773), and appellant's motion for a peremptory instruction should have been sustained.
Another contention is that practically all the evidence is inadmissible because it was obtained by search without the requisite warrant. The evidence was to the effect that the officers had a search warrant for the house of appellant's brother who lived next door to him. While they were searching that house, appellant ran out of the other house with something on his back. The officers mistook him for another man who had escaped jail, and pursued him. After appellant had gone some distance, he threw away into a field two half-gallon jars filled with whisky, one of which was broken. When the officers came up, they discovered the whisky and took possession of the jar that...
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State v. Harris
...of defendant's right to be secure in his person under Article 1, Section 15, of the Constitution is presented. Johnson v. Commonwealth, 201 Ky. 163, 256 S.W. 18; Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898. Defendant cannot complain of the search of the roof of the gara......
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