Pennington v. Commonwealth

• Decision Date: 12 November 1929
• Citation: 21 S.W.2d 808,231 Ky. 494
• Parties: PENNINGTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

21 S.W.2d 808

231 Ky. 494

PENNINGTON v. COMMONWEALTH.

Court of Appeals of Kentucky

November 12, 1929

Appeal from Circuit Court, Lawrence County.

Watt Pennington was convicted of the second offense of manufacturing intoxicating liquor, and he appeals. Affirmed.

C. F See, Jr., of Louisa, for appellant.

J. W Cammack, Atty. Gen., and Samuel B. Kirby, Jr., Asst. Atty Gen., for the Commonwealth.

CLAY J.

Appellant Watt Pennington, seeks a reversal of a judgment convicting him of the second offense of manufacturing intoxicating liquor and fixing his punishment at two years' confinement in the penitentiary.

Several witnesses were asked if they knew appellant's general reputation "as to being engaged in the illicit liquor business," and on answering in the affirmative were permitted to state that it was bad. Attention is called to the fact that the statute makes admissible in evidence "the general reputation of the defendant or defendants for moonshining, bootlegging, or being engaged in the illicit manufacture of, or trade in, intoxicating liquors," section 2554a15, Kentucky Statutes, Baldwin's 1926 Supplement, and it is claimed that the question asked did not conform to the statute and was therefore improper. While doubtless it is the better practice to ask the question in the language of the statute, we are not inclined to the view that a slight departure from the language of the statute is ground for reversal. One would hardly think that a man who merely took a drink was engaged in the illicit liquor business. Being engaged in the liquor business naturally carries with it the idea of moonshining or bootlegging, or the manufacture of, or trade in, intoxicating liquor. In the circumstances the question asked was substantially in the language of the statute and cannot be regarded as prejudicial in form.

The further point is made that judgment of conviction on the first trial did not show the crime of which appellant was convicted. This was not necessary. The judgment gave the title of the case, and the indictment itself was offered in evidence and showed that Watt Pennington was charged with the offense of unlawfully manufacturing intoxicating liquor. In the same connection it is claimed that the judgment showing that Watt Pennington had pleaded guilty did not show that the plea was entered by defendant himself in open court, as required by section 173, Criminal Code of Practice. The failure to contain such recitation was not fatal to the validity of the judgment. On collateral attack such as this, it will be conclusively presumed that the trial court complied with the provisions of the Code.

After the circuit clerk had testified and exhibited the...