Taylor v. Commonwealth

• Decision Date: 17 December 1926
• Citation: 217 Ky. 278,289 S.W. 285
• Parties: TAYLOR ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

289 S.W. 285

217 Ky. 278

TAYLOR ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 17, 1926

Appeal from Circuit Court, Scott County.

Asa Taylor and others were convicted of transporting liquor, and they appeal. Reversed.

King Swope, of Lexington, and L. F. Sinclair, of Georgetown, for appellants.

Frank E. Daugherty, Atty. Gen., and Gardner K. Byers, Asst. Atty Gen., for the Commonwealth.

DRURY C.

This is an appeal from a judgment of the Scott circuit court rendered upon a verdict finding the appellants, whom we shall call the defendants, guilty of unlawfully transporting intoxicating liquor and sentencing each of them to serve 30 days in jail and to pay a fine of $100. The evidence upon which the defendants were convicted, briefly stated, is this Once upon a time (this expression is used because a careful examination of the transcript of evidence shows that no time whatever is fixed for the commission of the offense herein charged), a Dodge car, driven by Dave Strider, and belonging to Buckner Morris, and a Cadillac car, also belonging to Buckner Morris, and driven by Tom Hood, were seen coming into Georgetown, Ky. at about 2 o'clock a. m. On examination it was discovered by the police officers of the city of Georgetown that the Dodge and Cadillac cars had parked on College street, and that the Dodge car was disabled and was being towed by the Cadillac. The officers searched the Cadillac and the Dodge and found 95 gallons of moonshine whisky in the Dodge and about a pint in the Cadillac. They arrested Hood, the driver of the Cadillac, on the spot. Buckner Morris, the owner of the Cadillac and the Dodge, surrendered himself later, as did Dave Strider, the driver of the Dodge. Strider, Morris, and Hood were all convicted in the police court in the city of Georgetown, the Cadillac and Dodge were ordered confiscated. At the time the officers arrested Strider, Morris, and Hood, they also walked a short distance behind the Dodge and Cadillac and arrested the four defendants, who were sitting in a Studebaker touring car belonging to the defendant Asa Taylor. The officers searched the Studebaker car in which defendants were traveling and in which they were at this time seated, and it was found to contain no whisky whatever. However, defendants were taken into custody and tried in the Georgetown police court on warrants charging them with the unlawful transportation of intoxicating liquor, and convicted and sentenced to pay a fine of $100 each and serve 30 days in the county jail. They appealed to the Scott circuit court and were tried in that court, and, although there is no evidence in the record to show that they directly or indirectly transported that whisky, they were convicted, and although the car of the defendant Asa Taylor, to wit, a Studebaker touring car, contained no whisky, and no evidence was adduced to show that it ever had transported any whisky, or contained any, it was, on oral motion of the commonwealth's attorney, ordered by the court confiscated and sold, and, from that order as well as the conviction of the defendants, this appeal is prosecuted.

Reversal of these judgments is requested on the following grounds: (a) That the trial court was without jurisdiction to order the sale of the automobile. (b) That the record does not show the date of the offense, or that it occurred within the limitation of one year. (c) That the court erred in instructing the jury. (d) That the evidence was not sufficient to support the verdict.

(a) Section 2554a12, Ky. St. Supp. 1926, authorizes the sale of an automobile, seized because it contains whisky, upon conviction of the person charged with unlawful possession.

"The court, upon conviction of the person so arrested, shall order the liquor destroyed and shall order a sale by public auction of the property seized."

There was no proof that the defendant Asa Taylor transported any whisky at all, and the proof is that he never had transported any whisky in that Studebaker automobile, that no whisky was found in the Studebaker automobile on that occasion, and that the defendant Asa Taylor was exercising no authority or jurisdiction over the Cadillac or the Dodge; or, even if he had been, it would not have justified the court in ordering the forfeiture of the Studebaker automobile, as was done in this action. It will be seen, by comparison, that section 2554a12 is copied almost word for word from section 26 of title 2 of the National Prohibition Act, 41 Stat. L. 315 (U. S. Comp. St. § 10138 1/2mm), which, in part, provides as follows:

"When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting, in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air, or water craft, or any other conveyance, and shall arrest any person in charge thereof. * * * The court upon conviction of the person so arrested shall order the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a sale by public auction of the property seized."

The United States courts have been holding the prosecution to a strict interpretation of the section above referred to, the same being almost identical with the Kentucky section with reference to forfeiture of automobiles. The...