Noble v. Com.
| Decision Date | 02 November 1956 |
| Citation | 295 S.W.2d 343 |
| Parties | Mitchell NOBLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
O. J. Cockrell, Jackson, for appellant.
Jo M. Ferguson, Atty. Gen., Wm. F. Simpson, Asst. Atty. Gen., for appellee.
Mitchell Noble, convicted of illegal possession of alcoholic beverages in local option territory for the purpose of sale was fined $50 and sentenced to 30 days in jail. He appeals.
The facts are these: Fallen McIntosh, a deputy sheriff of Breathitt County, swore out a search warrant alleging he had seen persons 'apparently drunk and under the influence of alcoholic drinks, milling in and out of the dwelling of Mitchell Noble.' This officer and Lewis Watkins, the police chief of Jackson, acting pursuant to the warrant searched Noble's house and found 20 cans of beer in the refrigerator. It was also brought out that fragments of two whiskey bottles were discovered in the toilet. These were heard being broken when the officers were entering the house, according to their testimony. The judge, however, in his instructions to the jury made no reference to the possession of any whiskey. The officers who made the raid and found the beer stated that Noble had the reputation of being a bootlegger. The only other witness for the prosecution was Cora Noble, the county court clerk of Breathitt County, who testified Noble's home is located in Breathitt County and that this county is 'dry territory'. Claiming the evidence was insufficient to convict him, Noble moved for a directed verdict. His motion was overruled.
Noble then presented his defense, which was that he had no interest in or control over the beer. Both he and his wife testified the beer was not his. A third witness of his was Danville Herald. The latter testified he had put 20 cans of beer in Noble's refrigerator since he had no place to keep it cold and since he was planning to work for Noble later in the week and wanted the beer handy so he could drink it after work. It is not clear whether Noble knew that Herald had put this beer in his refrigerator. After the court charged the jury, a verdict of guilty was returned, and the punishment we have mentioned was imposed.
Noble urges these grounds for reversal: (1) The evidence was insufficient to sustain the verdict; (2) the lower court erred prejudicially in not giving a specific instruction, as requested, on his theory of the case, i. e., that the beer was not owned by him and that he had no control over it; (3) the indictment was defective in that the accusative part charged one offense and the descriptive part a different one; (4) the search warrant was not issued on probable cause; and (5) there was no adequate showing that Breathitt County was local option territory. We shall consider these grounds in the order named.
Noble's contention that the verdict is against the evidence is wholly untenable. Twenty cans of Budweiser beer were found in the kitchen refrigerator by the searching officers and they testified two one-half pints of whiskey were being gotten rid of at the time the officers entered the home. They heard the noise as the bottles were being broken in the commode and they found the broken bottles and smelled the whiskey which they had contained. This evidence was coupled with the further testimony that Noble's reputation for trafficking in liquor in the community was bad. We conclude such direct evidence pointed to the guilt of the accused and that the case was properly submitted to the jury for determination.
Did the trial court commit a reversible error when it refused to give the instruction Noble requested? We believe it did. It is the present view of this Court that a special instruction should be given, in a case such as this, where it develops on the trial that there is evidence which tends to establish a defense other than one of simple denial of possession. See Bates v. Com., Ky., 262 S.W.2d 184; Blevins v. Com., Ky., 258 S.W.2d 501; Hammons v. Com., Ky., 252 S.W.2d 51; Scott v. Com., 311 Ky. 419, 224 S.W.2d 458; Patrick v. Com., 286 Ky. 265, 150 S.W.2d 901; Gossett v. Com., 262 Ky. 540, 90 S.W.2d 730; Herrin v. Com., 231 Ky. 139, 21 S.W.2d 139; Kratzer v. Com., 228 Ky. 684, 15 S.W.2d 473; Keifner v. Com., 225 Ky. 163, 7 S.W.2d 1066.
To be guilty of illegally possessing intoxicating liquor within the meaning of the local option law such liquor must not only be kept for the purpose of sale but it must be subject to the control and management of the accused. Blevins v. Com., cited above. Noble's defense that ...
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