Ragland v. Commonwealth

• Decision Date: 30 September 1924
• Citation: 204 Ky. 598,265 S.W. 15
• Parties: RAGLAND v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

265 S.W. 15

204 Ky. 598

RAGLAND v. COMMONWEALTH.

Court of Appeals of Kentucky.

September 30, 1924

Appeal from Circuit Court, Hopkins County.

Alberta Ragland was convicted of violation of prohibition law, and appeals. Affirmed.

H. F S. Bailey and Cox & Grayot, all of Madisonville, for appellant.

Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.

SAMPSON C.J.

On the arrival of the train at Nortonville at 3:25 a. m., appellant Alberta Ragland, carrying a hand bag, alighted and walked off several steps from the train and was standing alone when the chief of police of the town came along and inquired of her whose bag it was that sat near her feet. Appellant declared she did not know whose bag it was; that it was not hers. Thereupon the officer said, "If no one claims it, I will take it with me," and carried it away. Immediately before the officer came to where appellant stood, he had arrested a colored man named Robert Owen for being drunk. The drunk also carried a suit case or hand bag. The officer proceeded immediately with his prisoner and two bags to the jail. After locking up Owen, he looked into the bag which he took from him and found it contained a jug full of whisky. Later he looked into the bag which he found near appellant and it contained one or more jugs of whisky. At the trial in police court appellant testified that neither of the bags belonged to her, that she did not know whose they were, and that she had no connection with the whisky. She did not testify on the trial in the circuit court, to which she prosecuted an appeal. The commonwealth introduced Robert Owen as a witness in its behalf and proved by him that he was on the train arriving at Nortonville about 3:25 a. m., and that he saw appellant on the train with a man; that she had with her the two hand bags which the officer searched; that before getting off the train the woman asked her companion to ask the witness to carry one of the bags off the train for her; and that he did so at her request, not knowing what the bag contained. He said he was drunk, but as he came off the train he looked back and saw appellant coming off the train with the bag which was found at her feet a few minutes later by the officer; that the bag found by the officer at appellant's feet was the same she had on the train and the one she was carrying off the train when he last saw her. The case was submitted to a jury and a verdict returned finding appellant, Alberta Ragland, guilty and fixing her punishment at a fine of $200 and 30 days in the county jail. She prosecutes this appeal.

She first insists that the affidavit which she filed for a continuance should have been read to the jury as true; that the court erred to her prejudice in declining to instruct the jury to accept the statements in the affidavit concerning what certain witnesses named therein would state in her behalf, as true. This insistence cannot be maintained. Subsection 1 of section 189 of the Criminal Code, among other things, provides that when an application is made by a defendant for a continuance, based upon the affidavit stating the absence of one or more material witnesses, and the fact which said absent witnesses would, if present, prove, the attorney for the commonwealth shall not be compelled, in order to...