Moore v. Com.

• Decision Date: 12 October 1923
• Citation: 200 Ky. 419,255 S.W. 77
• Parties: MOORE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

255 S.W. 77

200 Ky. 419

MOORE v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 12, 1923

Appeal from Circuit Court, Daviess County.

John Moore was convicted of unlawfully having in possession an illicit still, and appeals. Affirmed.

W. E. Aud and Elmer L. Brown, both of Owensboro, for appellant.

T. B McGregor, Atty. Gen., and Chas. W. Logan, Asst. Atty Gen for the Commonwealth.

SAMPSON C.J.

Appellant Moore, was accused by indictment in the Daviess circuit court of the offense of unlawfully having in possession an illicit still, designed for the unlawful manufacture of intoxicating liquors. He was found guilty, and his punishment fixed at a fine of $500 and confinement in the county jail four months. In his motion for new trial he sets forth eight alleged reasons as follows:

"First. The court erred to the prejudice of the substantial rights of the defendant in overruling his motion for a directed verdict at the conclusion of the evidence by the commonwealth, to which ruling the defendant objected and excepted at the time.

Second. The court erred to the prejudice of the substantial rights of the defendant in overruling his motion for a directed verdict at the conclusion of all the evidence, to which ruling the defendant objected and excepted at the time.

Third. The court erred to the prejudice of the substantial rights of the defendant in overruling his demurrer to the indictment, to which he objected and excepted at the time.

Fourth. The court erred to the prejudice of the substantial rights of the defendant in allowing incompetent and irrelevant evidence introduced by the commonwealth, to the introduction of which he objected and excepted at the time and still excepts.

Fifth. The court erred in giving instructions Nos. 1 and 2, to which the defendant objected and excepted at the time, and the court erred in failing to instruct on the whole law of the case.

Sixth. The verdict of the jury is contrary to the law and evidence.

Seventh. The court erred to the prejudice of the substantial rights of the defendant in allowing the commonwealth to file a copy of the search warrant issued by J. R. Higdon, United States commissioner, which was attested by Miss M. E. Dunn, deputy United States clerk, at Owensboro, Ky. without showing by the officer who issued the search warrant any reason for failing to bring into court the search warrant itself, or the original search warrant, and without giving any reason why the original search warrant could not be produced, and this the court did over the objections of the defendant, to which ruling of the court the defendant objected and excepted at the time.

Eighth. The verdict of the jury is the result of passion and prejudice."

The principal insistence of appellant is that the court erred to the prejudice of his substantial rights in overruling his motion for a directed verdict in his favor. This is based largely, if not entirely, upon his further contention that the officers who made the arrest and found the moonshine still on his premises were acting under an invalid warrant. The affidavit upon which the search warrant issued is assailed as insufficient to support it. It was made before a commissioner of the United States District Court for the Western District of Kentucky, at Owensboro, and reads as follows:

"United States of America, Western District of Kentucky, Owensboro Division--ss.: Affidavit for Search Warrant. Be it remembered, that on this day, before me, the undersigned, a United States commissioner for the Western district of Kentucky, Owensboro division, came Wm. T. Mastin, who, being by me duly sworn, deposes and says that the laws of the United States, namely, the National Prohibition Act, _____, Revised Statutes, are being violated by reason of the facts, to wit: That John Moore, has in his possession or under his control illicit stills, and manufacturing intoxicating liquors, and been selling said liquor, or giving it to Herman Pence and Jesse D. Poole, in Daviess county, Kentucky, near Friendly Grove schoolhouse, on a farm located or situated on the right-hand side of the Owensboro and Hawesville road, about 3 miles north of Knottsville,

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