Minniard and Turner v. Commonwealth

• Decision Date: 21 May 1926
• Citation: 214 Ky. 641
• Parties: Minniard and Turner v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

214 Ky. 641

Minniard and Turner v. Commonwealth.

Court of Appeals of Kentucky.

Decided May 21, 1926.

1. Criminal Law — Where Defendants did Not Rest on Objections to Testimony or on Motions for Peremptory Instructions, but Supplied Testimony Necessary for Their Conviction, they Could Not Complain of Overruling of Motions and Objections or that Commonwealth had Failed to Make Out its Case. — Where defendants did not rest on objection to testimony of officers as to defendants' possession of intoxicating liquor as obtained by unlawful search or on their motions for peremptory instructions, but supplied on direct examination testimony necessary for their conviction, they could not complain that their objections and motions were overruled or that Commonwealth had failed to make out its case by competent testimony produced by it.

2. Intoxicating Liquors. — In prosecution for unlawful possession of intoxicating liquors, question of defendants' guilt held for jury.

Appeal from Harlan Circuit Court.

ASHER & SHEHAN for appellants.

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

OPINION OF THE COURT BY JUDGE DIETZMAN.

Affirming.

The two above styled cases were heard together in the lower court and will be disposed of here by one opinion. Each of the appellants was, on his trial under a warrant for the unlawful possession of intoxicating liquors, found guilty, and from the judgment entered on the verdicts, they bring these appeals.

It appears that a deputy sheriff, Lee Cole, accompanied by Isaac Young, who was the chief of police of Evarts, was on a public highway of the county of Harlan about twilight searching for an escaped felon when they met the two appellants, each of whom was carrying a sack containing fruit jars filled with moonshine whiskey. These officers testify that they saw the bulk and imprint of the fruit jars in the sacks and smelled the odor of whiskey, whereupon they arrested the appellants and on searching them found the liquor mentioned. On the other hand, the appellants testify that on account of the way they had the liquor covered up it was impossible for the officers to have seen the bulk or imprint of the fruit jars and that there was no smell of whiskey about them on that occasion. They say that the officers first arrested them without right and then on search discovered the whiskey. The only testimony introduced by the Commonwealth was that of the officers. It was duly...