Little v. Commonwealth

• Decision Date: 04 November 1927
• Citation: 221 Ky. 696
• Parties: Little v. Commonwealth
• Court: United States State Supreme Court — District of Kentucky

221 Ky. 696

Little v. Commonwealth

Court of Appeals of Kentucky.

Decided November 4, 1927.

1. Criminal Law. — Where, in a prosecution for illicitly manufacturing liquor and aiding others to do so, the evidence was conflicting, but in his opening statement the commonwealth's attorney in addressing

the jury used language, the nature of which was the threatening of dire consequences in the event a conviction were not obtained, held that in view of Criminal Code of Practice, secs. 219, 220, such statements were erroneous conduct.

2. Criminal Law. — Where the commonwealth's attorney, in a prosecution for the illicit manufacture of intoxicating liquors, in his argument to the jury, appealed to their prejudices, unnecessarily abused the defendant by calling him a skunk, and, to sustain his argument, alleged facts of which there was no evidence in the record, held that such argument was erroneous conduct.

3. Criminal Law. — Where, in prosecution for the illicit manufacture of liquor, the attorney for the commonwealth made threatening statements as to his further prosecutions in the event a guilty verdict were not returned, and also in his argument he made prejudicial statements, and recited facts not in evidence, such conduct held reversible error.

4. Criminal Law. — The admission of evidence in a liquor prosecution that the defendant had at a different time and place from that relied on for conviction by the prosecution ground sprouted corn, presumably with the purpose of manufacturing liquor, held error.

Appeal from Wolfe Circuit Court.

LEEBURN ALLEN for appellant.

FRANK E. DAUGHERTY, Attorney General, and CHAS. F. CREAL, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Reversing.

Appellant was charged by indictment with the illicit manufacture of liquor, and in aiding others so to do. On his trial he was found guilty, and prosecutes this appeal.

On his trial the specific time and place fixed by the commonwealth's witnesses as the time and place of the commission of the offense was the 16th of December, 1926, at the home of Ance Eversole. The evidence was conflicting as to whether appellant was present at the time and place fixed by two of the commonwealth's witnesses; there being at least two witnesses who testified he was not at the home of Ance Eversole on that date.

There being a sharp conflict in the evidence as to the guilt or innocence of defendant upon the occasion in question, it was obviously error for the attorney of the commonwealth to make the statements and deliver the arguments hereinafter referred to.

In the opening statement at the trial, the attorney for the commonwealth, among other things, said:

"Gentlemen, I have come over here from home to try these cases so that I could be of some service to this community, and I am going to try this case, and the result of this trial will determine whether or not I will try any more of these cases. You came here for service, and we want service."

Under the provisions of sections 219 and 220 of the Criminal Code, at the beginning of a trial either the clerk or the attorney for the commonwealth shall read to the jury the indictment and state the defendant's plea; and the attorney for the commonwealth may make a statement to the jury giving the nature of the charge against the defendant, and the law and...