Miller v. Com.
| Decision Date | 04 October 1968 |
| Citation | 432 S.W.2d 638 |
| Parties | Arthur Frank MILLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
J. W. Jordan, Barbourville, for appellant.
John B. Breckinridge, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, Carlos B. Pope, Barbourville, for appellee.
Appellant was convicted of having in his possession alcoholic beverages in local option territory in violation of KRS 242.230. From judgment entered pursuant to the jury verdict he appeals.
On December 4, 1966, Kentucky State Trooper Barton received from Otis Croley, an Alcoholic Beverage Control Agent, a 'John Doe' search warrant issued by a circuit judge designating the place to be searched as a 'black and silver house trailer' and containing information as to its location.
An hour later Barton, together with Deputy Sheriff Roy Brown, went to the trailer and read the warrant to Arthur Miller and Flossie Miller. Then the officers entered the trailer and found 45 16-ounce cans of beer in the refrigerator and 24 half pints of whiskey in the bedroom. The officers arrested the Millers on a charge of possession of alcoholic beverages in violation of local option laws. They were subsequently indicted for violation of KRS 242.230, which provides as follows:
'(1) No person in dry territory shall sell, barter, loan, give, procure for or furnish another, or keep or transport for sale, barter or loan, directly or indirectly, any alcoholic beverage.
'(2) No person shall possess any alcoholic beverages unless it has been lawfully acquired and is intended to be used lawfully, and in any action the defendant shall have the burden of proving that the alcoholic beverages found in his possession were lawfully acquired and were intended for lawful use.'
On trial held September 19, 1967, Trooper Barton testified that he had known Arthur Miller for about six years prior to the arrest but did not know that Miller was one of the occupants of the trailer until execution of the warrant. He also testified, over objection, that the reputation of Miller was 'bad' with respect to violating alcohol laws. Barton admitted that he knew of no neighbors in the trailer's vicinity who said the defendant had such a reputation, but said 'I have had several complaints from different people concerning Arthur Miller'. Deputy Brown testified that he and agent Croley, acting on a tip, '* * * went up and watched it (the trailer) on one or two different times', but admitted that they had seen no indication of law violation.
At the close of the Commonwealth's evidence the defense moved for a directed verdict on grounds that the search warrant and affidavit were fatally defective for failing to name the defendants, or to assert their ownership or possession of the trailer, which motion was overruled.
Miller testified that he had been employed in the 'Happy Pappy' program for about two years, earning about $180.00 per month. He said that he had consented to the search after the reading of the warrant. Miller testified that the beverages had been purchased by him 'the day before' at Cumberland, Kentucky, for his own use, at a cost of about $41.00. He said that at the time of the search he had consumed three cans of an original 48 cans of beer and that he 'didn't drink very much' and sometimes would give away 'a can of beer or something' to a visitor.
Mrs. Miller testified that, together with her husband and two children, she was still 'in process of moving' into the trailer from another area when the arrest occurred. She testified that she had no knowledge of the presence of the beverages in the trailer.
A neighbor testified that she knew the defendants for six years and that she had no knowledge of any bad reputation with respect to selling of alcoholic beverages.
At the close of all evidence, defense moved for a directed verdict on the same grounds as before and also for insufficiency of evidence. The court sustained the...
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