Wilson v. Commonwealth
| Decision Date | 20 September 1918 |
| Citation | 181 Ky. 370 |
| Parties | Wilson v. Commonwealth. |
| Court | Kentucky Court of Appeals |
Appeal from Pendleton Circuit Court.
ALLAN D. COLE, E. E. BARTON and W. A. BYRON for appellant.
CHARLES H. MORRIS, Attorney General, and OVERTON S. HOGAN, Assistant Attorney General, for appellee.
The appellant, C. D. Wilson, was tried and convicted in the Pendleton Circuit Court under an indictment charging him with the offense of having in his possession malt liquors for the purpose of selling them in local option territory in violation of section 2557b, Kentucky Statutes. His punishment was fixed by verdict of the jury at a fine of $100.00 and fifty days' imprisonment in jail. He was refused a new trial and has appealed.
He complains (1) of the admission by the trial court of incompetent evidence; (2) of the refusal by the court of a peremptory instruction, directing his acquittal by the jury; (3) that the verdict of the jury was unsupported by and is contrary to the evidence.
The only witness introduced by the Commonwealth was J. R. Earle, station agent of the Louisville & Nashville Railroad Company, at Falmouth, Kentucky, who testified to the shipment to appellant from Covington, Kentucky, of about 180 dozen pints of malt liquor (beer), these shipments being shown by a book containing a record of all such shipments made by the railroad company to Falmouth, which book, showing the shipments, was produced by the witness and exhibited to the jury. It appears from this book that about 120 dozen pints of beer were shipped to and received by appellant more than a year before the finding of the indictment. The appellant objected to the introduction of the evidence as to the shipment of the first 120 dozen pints of beer, whereupon the court confined the witness and the introduction of the book to such shipments of beer as were made appellant within the year next before the finding of the indictment, and it appeared from the entries on the book and the statements of the witness that there were shipped to and received by appellant between September 15th and October 10th, 1917, of the year covered by this indictment, 60 dozen pints of beer, and the shipment of these 60 dozen pints only was allowed to be considered by the jury. It will thus be seen that the court sustained the objection of the appellant as to the shipments of beer made prior to the year covered by the indictment and in effect excluded that evidence. It would seem, therefore, that the complaint of appellant as to the admission of the shipments made prior to the year covered by the indictment is without merit.
It is further claimed by appellant that there was no evidence making competent the entries in the book exhibited to the jury. It is true that it was not shown by the witness that he had made the entries in the book or that he knew by whom they were made, nor did he identify the entries as in the handwriting of himself or any other person, but the record fails to show that the introduction of the book and entries was objected to by appellant. The only objection made by the appellant appearing of record was as to the entries in the book of shipments made prior to the year covered by the indictment. In order to avail himself of the complaint now made the appellant should have objected to the introduction of the book and entries at the time they were made and if there had been a failure on the part of the witness to properly identify same and the court had, notwithstanding, allowed the book to be introduced as to the entries of shipments within...
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