Royce v. Commonwealth

• Decision Date: 18 April 1922
• Parties: ROYCE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

239 S.W. 795

194 Ky. 480

ROYCE v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 18, 1922

Appeal from Circuit Court, Monroe County.

Robert Royce was convicted of unlawfully transporting liquor, and he appeals. Affirmed.

B. F Denham, of Tompkinsville, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

SAMPSON J.

Appellant Robert Royce, and one Kinnaird, were apprehended by a posse of deputy sheriffs on a public highway, in Monroe county, while they were driving a Ford automobile containing intoxicating liquors from Tompkinsville towards Glasgow. They were jointly indicted in the Monroe circuit court charged wth unlawfully transporting liquor. Kinnaird pleaded guilty and was adjudged to pay a fine and serve a jail sentence. Appellant, Royce, pleaded not guilty, and at a subsequent term of court was tried, found guilty, and fined $50, and adjudged to serve 30 days in the county jail. From this judgment he appeals.

To reverse the judgment appellant, Royce, assigns as grounds the insufficiency of the affidavit upon which the search warrant was issued, the insufficiency and invalidity of the search warrant, from which it results that all the evidence offered for the commonwealth tending to prove the guilt of appellant was incompetent, as he contends, because said evidence was obtained through an illegal search warrant.

It appears from the record that appellant and Kinnaird had obtained a large quantity of moonshine whisky near the Kentucky-Tennessee state line and were transporting it in a Ford automobile through Monroe county in the direction of Glasgow at the time the affidavit upon which the search warrant was made and the search warrant issued. The bill of exceptions contains a concise statement of all the evidence introduced for the commonwealth, which is as follows:

"Overtook defendant and Kinnaird on the Glasgow and Tompkinsville pike, about two miles out of Tompkinsville; that at the time Kinnaird was in the machine at the steering wheel, and defendant, Royce, was cranking the machine, deputy sheriff told him several times to stop cranking the machine, and defendant looked up and turned around, and I told him we were officers, and he stopped; that Bryant drew a pistol on Royce before Royce let loose of the crank; that Kinnaird asked the officers not to destroy his liquor, that he had suffered losses and was trying to get on his feet and could not stand the loss of the liquor; that Royce said: 'Harry, they have got us. Let's go with them. You know the liquor is ours.' That they found from 8 to 12 gallons of liquor in the possession of the said Kinnaird and Royce in the machine."

At the conclusion of the evidence for the commonwealth, appellant, Royce, moved the court to hold the search warrant insufficient and to quash the evidence obtained by reason of said search warrant. This motion was overruled by the court, and appellant excepted. For the same reason he insists the court should have directed a verdict for him.

It appears from the foregoing synopsis of the evidence that when the deputy sheriffs found the appellant and Kinnaird on...