Maier v. Commonwealth
| Citation | 210 Ky. 441 |
| Parties | Maier v. Commonwealth. |
| Decision Date | 06 October 1925 |
| Court | United States State Supreme Court — District of Kentucky |
1. Intoxicating Liquors — Instruction Using Moonshine Whiskey in Description of Liquor was Proper. — An instruction that if jury believed defendant possessed moonshine whiskey they would find him guilty was proper, where charge was possession of intoxicating liquor which is denounced in Rash-Gullion Act, since moonshine whiskey was merely descriptive of the liquor.
2. Intoxicating Liquors — Allegations in Affidavit for Search Warrant Held Sufficient. — An affidavit for search warrant, which, after describing premises and naming persons in control, stated as an ultimate fact that intoxicating liquor was at the time wrongfully possessed on premises, was sufficient.
3. Intoxicating Liquors — Evidence Held Sufficient to Sustain Verdict of Jury of Guilty of Unlawful Possession of Intoxicating Liquor. — In prosecution for unlawful possession of intoxicating liquor, evidence held sufficient to warrant submission to jury and to warrant conviction.
Appeal from Campbell Circuit Court.
SAMUEL ROTTER for appellant.
FRANK E. DAUGHERTY, Attorney General, and CHARLES F. CREAL, Assistant Attorney General, for appellee.
Affirming.
Conrad Maier appeals from a judgment of conviction on the charge of unlawfully having intoxicating liquor in his possession and urges as grounds for reversal: (1) Erroneous instructions. (2) Incompetent evidence. (3) He is entitled to a peremptory instruction. (4) Evidence is insufficient to support the verdict.
The first instruction reads in part:
"If the jury believe from the evidence beyond a reasonable doubt that the defendant, Conrad Maier, on April 19, 1924, in the city of Clifton, Campbell county, Kentucky, possessed, or had in his possession, any spirituous or intoxicating liquor, to-wit, moonshine whiskey, except for sacramental, medicinal, scientific or mechanical purposes, then you will find him guilty. . . ."
On the authority of Sprigg v. Commonwealth, 200 Ky. 559; Potter v. Commonwealth, 202 Ky. 710, it is urged that the possession of moonshine liquor is not denounced as a public offense and that it was error for the court to so instruct the jury. Formerly there was a statute providing a specific punishment for the manufacture of moonshine liquor. The Rash-Gullion Act provided a specific punishment for the unlawful manufacture of intoxicating liquor, which in terms conflicted with the former act, and in the cases cited we held that the former act was thereby repealed and no longer in force; but those opinions do not apply to the case in hand. Here the charge is the possession of "intoxicating liquors," which is clearly denounced by the Rash-Gullion Act, and the words "moonshine whiskey" are merely...
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