Fornash v. Commonwealth

257 S.W. 24, 201 Ky. 463, 1923 Ky. LEXIS 323

• Court: Court of Appeals of Kentucky
• Decided: December 21, 1923
• Status: Published

Opinion

Opinion op the Court by

Judge Thomas

Affirming.

Tbe appellants, Newt and Emmett Fomasb, are father and son and live together in the same house in Grant county. They were jointly indicted by the grand jury of that county and accused of unlawfully manufacturing spirituous, vinous and malt liquors, and upon their trial they were each convicted. Their motion for a new trial was overruled and from the judgment pro- • nounced on the verdict they have appealed and through their counsel insist that the evidence was insufficient to sustain the conviction.

A witness for the Commonwealth, Bertha Lowe Billiter, testified that a short while prior.to November 11, 1922, and before she married, she received information' that appellants were manufacturing whiskey, and on the night of that day she travelled from her residence, about six miles, to that of defendants, having heard that they intended to bottle some of their product that night; that on arriving at their home she concealed herself and went to the window on the outside and saw appellants engaged in bottling a white fluid in different sized bottles, taking it from a large can or container; that she saw a still in the corner of the room including the coil, and, from her description, almost everything necessary to manufacture whiskey; that two days thereafter she went to Williams-town and made an affidavit for a search warrant for: the premises of appellant. A warrant was issued and placed in the hands of the sheriff of the county, who with two deputies executed it on that night by making a search as therein directed. They all testified that they found in the attic of the residence some three or four empty barrels strongly inoculated with the odor of mash or beer from which whiskey is manufactured. They also found behind the door in the living room a covered barrel containing fifty-five gallons of mash made of yellow corn and it was fermented, and which strongly issued the odor of alcohol. In the kitchen they found another barrel containing the same material, but it was only about two-thirds full. In the pantry of the residence they found a half barrel of yeast cakes with water, and in the com crib they found a keg of mash without any water in it. They stated that defendants said that they were making some kind of home brew with the discovered articles, but Emmett Fornash, who testified in the case (his father not doing so), said at the trial that they were all ingredients of slop being prepared for the hogs. There were other minor facts and circumstances which, to say the least, furnished a strong suspicion of the guilt of defendants. The brief of counsel manifects much chagrin and disappointment at the verdict, and characterizes the trial as a “comedy of errors,” and that “it would have been just as well to have turned the defendants over to the hounds and the mob; ’ ’ but the brief! is barren of any convincing argument for such conclusions, since we have searched the record in vain to find any legally substantiating grounds therefor.

It is insisted that the testimony of Mrs. Billiter is so improbable as to be unbelievable, but her reputation is not attacked and the credibility of her testimony was essentially for the jury. It is also insisted that the affidavit for the search warrant stated more than one offense against defendants; but it. is not to be measured by the same rules by which the validity of indictments is tested, and therefore the objection of duplicity does not apply to it. The duplicity complained of in the affidavit consisted in the affiant stating therein that she saw the still in possession of appellants and also their possession of the whiskey that- they were bottling, and it is complained that in giving the same testimony on the trial the court "erroneously permitted proof of a different offense from that for which appellants were tried, and for that reason the judgment should be reversed. That contention may be answered in more ways than one; in the first place there was.no objection to the testimony, and, in the second place, if there had been it would have been unavailing, since the fact under the surroundings as detailed by the witness was a germane circumstance having a tendency to prove the charge in the indictment, which, with the immediate presence of the still in defendants’ residence, as testified to by the witness, would authorize the jury to infer the guilt of appellants of the offense with which they were charged.

The affidavit and search warrant were each introduced and they completely measured up to the requirements of the law, thus removing any objections to the competency of the testimony of the officers as to their discoveries in executing the warrant. It is true they did not find a still in the possession of appellants, nor discovered them operating one, yet they found in their possession most everything essential in manufacturing whiskey, except the still itself, and the given explanation by appellants for having those articles in their possession is so weak and incredible as to inspire the belief in their guilt rather than in their innocence.

Upon the whole ease we entertain no doubt as to the sufficiency of the evidence to sustain the verdict, and finding no error authorizing us to disturb the judgment, it is accordingly affirmed.