Volume 200 — Kentucky Reports

<p>Appeal from Boyd Circuit Court.</p>

<p>Appeal from McCreary Circuit Court.</p>

<p>Appeal from Madison Circuit Court.</p>

<p>Criminal Law — Court of Appeals has no Jurisdiction, where Judgment Imposed $50.00 Fine and 30 Days’ Imprisonment. — Under Criminal Code of Practice, section 347, authorizing an appeal, where the judgment imposes a fine in excess of $50.00 or imprisonment for more than 30 days, the Court of Appeals must dismiss an appeal where the judgment imposed a fine of $50.00 and 30 days’ imprisonment in jail.</p>

<p>Appeal from Henderson Circuit Court.</p>

<p>Criminal Law — Intoxicating Liquors — Evidence Obtained by Search Admissible Though Affidavit for Warrant Based on Information Obtained from Others. — An affidavit stating that accused “is now in this county with a truck and affiants believe he has moonshine whiskey in said truck, transporting it through F. county; that said truck has in the rear of it something covered with a tarpaulin, presumably moonshine whiskey; that the said B. (the accused) has no known business in this county other than transporting moonshine whiskey” — -stated sufficient facts to support a search warrant under Constitution, section 10, so as to render admissible evidence obtained thereby although it also stated that affiants had information from a reliable person, and believed, and had reasonable ground to believe, that appellant was handling moonshine whiskey.</p>

<p>Criminal Law — Evidence Obtained Without Search Warrant Incompetent. — Evidence obtained by officers by unlawful search of. a'house without a search warrant was incompetent.</p>

<p>1. Criminal Law — Misstatements of Witness to Surprise of Party Introducing Him Must be Called to Attention of Court. — After ac* caused was taken by surprise in testimony of a witness for her, sbe should then have so informed the court and moved to set aside the swearing of the jury and for a continuance, or -she could have introduced evidence in contradiction of his statements; but failing to do this, and permitting the jury to continue the case with this evidence before them without objection, she took her chances as to its verdict, and is not entitled to a new -trial by reason of the statements of the witness, though such witness files an affidavit to the effect that he was mistaken in his testimony.</p> <p>2. Criminal Law — New Trial Not Granted for Cumulative Evidence Not of Convincing Character.- — A new trial will not be granted for newly discovered evidence, which is merely cumulative and cannot be said to be of such importance and of such clear and convincing character as to have controlling influence on another trial.</p>

<p>1. Indictment and Information — Indictment Must Name County in which. Offense Committed.' — An indictment for manufacturing intoxicating liquor in violation of the prohibition act was not sufficient, where it failed to name the county in which the alleged offense was committed, in view of Criminal Code of Practice, section 124, subsection 2.</p> <p>2. Indictment and Information — Object of Statute as to Naming County Stated. — The object of Criminal Code of ^Practice, section 124, subsection 2, providing that an indictment mqst be direct and certain as regards the county in which the offense was committed, is not only to fix the revenue and to apprise defendant of the particular accusation, but also to make the judgment available as bar to a subsequent prosecution.</p>

<p>Appeal from Clay Circuit Court.</p>

<p>Appeal from Jackson Circuit Court.</p>

<p>Appeal from Harlan Circuit Court.</p>

<p>Appeal from Jefferson Circuit Court</p>

<p>Appeal from Webster Circuit Court.</p>

<p>Appeal from Harlan Circuit Court.</p>

<p>1. Criminal Law — Plea of Guilty in Another Court Admissible. — In prosecution in state court, an oral plea of guilty in the federal court upon the same charge, based upon the same facts, was competent and provable by oral evidence.</p> <p>2. Criminal Law — Statements to Attorney Self-Serving Declarations and Inadmissible. — Where a plea of guilty in federal court is admitted in evidence in prosecution for same offense in state court, the defendant is entitled to have the jury hear and consider his entire statement in the federal court, together with any explanation he desires to make, but a statement made by him to his attorney that he was not guilty apparently in private was not a part of his plea in the federal court, was self-serving, and the court did not err in rejecting it.</p> <p>3. Intoxicating Liquors — Evidence Sufficient to Show Illegal Possession. — Defendant’s admission of guilt in the federal court on the same charge, his reputation as an illicit dealer in liquor, and evidence that two persons were seen coming out of his house after dark with a gallon of whiskey each, held sufficient to sustain a conviction for unlawful possession.</p> <p>4. Criminal Law — Court Held to Have Erred in Failing to Instruct as to Meaning of “Having in Possession.” — While ordinarily it is not necessary to instruct a jury as to meaning of such common words or phrases as “possession” or “having in possession,” yet, where a jury returned into court in a prosecution for unlawful possession of intoxicating liquors, and asked, “We want to know, if somebody else was to take whiskey in a man’s possession, and if that man be gone, whether that puts him responsible or not,” it was error for the court to refuse to answer the question, and to require them to decide for themselves the legal effect of the terms employed in the instructions and not defined.</p>

<p>1. Criminal Law — Selection of Jury from Adjoining County Not Subject to Review. — Action of tbe trial court in selecting tbe jury from an adjoining county is not subject to review by the Court of Appeals under Criminal Code of Practice, section 281.</p> <p>2. Criminal Law — No Error When Evidence Admitted Without Objection, and Defendant Testified About the Same Matter. — In a homicide case the admission of evidence with reference to how and from whom defendant obtained whiskey on his way to the place of the killing was not error, where defendant did not object when the evidence was introduced, and as a witness for himself testified fully and without substantial variance about the whole matter.</p> <p>3. Witnesses — Where Defendant Testified Deceased had Arrested Him on False Charges, Testimony on Cross-Examination as to Nature of Accusation Properly Admitted. — In a homicide prosecution, where defendant testified that he shot deceased, because he arrested him without cause, and that for some time theretofore deceased had manifested ill will toward him by frequently arresting him upon trumped-up and unsubstantial charges, testimony upon cross-examination without objection that deceased accused him of stealing a shotgun, held properly admitted.</p> <p>4. Homicide — Failure to Admonish as to Purpose of Evidence Not Reversible Unless Prejudicial. — Error of the court in failing to admonish the jury as to the purpose of impeaching evidence is not reversible, where it appears from the whole record that the substantial rights of the accused were not prejudiced thereby, as where accused was convicted of manslaughter, though clearly proven guilty of murder.</p> <p>5. Criminal Law — Averments in Affidavit Filed in Support of Motion for New Trial Held Not to be Considered. — Averments in an affidavit filed by accused in support of his motion for new trial cannot be considered on appeal in support of a contention that court’s remarks and conduct were improper and prejudicial, since they relate to matters alleged to have occurred on the trial, not otherwise apparent from the record.</p> <p>6. Criminal Law — Matters May Not be Injected into the Record by Affidavit. — Matters occurring upon the trial may not be injected into the record by affidavit, but must be included in the bill of exceptions under Criminal Code of Practice, section 282.</p> <p>7. Homicide — Absence of Instruction as to Duties of Deceased Officer in Arresting Accused Held Not Prejudicial. — In a prosecution for murder of an officer held that absence of an instruction with reference to the official duties of deceased in arresting him upon a charge of disturbing a lawful assemblage, and keeping him in custody .thereafter and at the time of the homicide was not prejudicial to defendant.</p>

<p>Appeal from Pike Circuit Court.</p>

<p>Appeal from Harrison Circuit Court.</p>

<p>•1. New Trial — Cannot be Granted on Application Made After Term Because of Assessment of Damages Without Proof, when Applicant had Notice During Term. — In view of Civil Code of Practice, section 344, a new trial cannot be granted on application made after the term, under section 518, subd. 1, on the ground that damages were assessed without proof, where the applicant had notice of the judgment in time to move during the term.</p> <p>2. Appeal and Error — Judgments Not Reversed, Where no Exceptions Taken Thereto and no Motion for New Trial Made. — Judgment entered after default of defendant cannot be reversed where no exception was taken to it and no motion for new trial was made, though action was brought after term for new trial under Civil Code of Practice, section 518.</p> <p>3. Appeal and Error — Matters Reviewable in Absence of Motion for New Trial. — In the absence of a motion for a new trial, the only question that may be considered on appeal is whether the pleadings sustain the judgment.</p>