Fred v. Commonwealth

283 S.W. 1030, 214 Ky. 689, 1926 Ky. LEXIS 401

• Court: Court of Appeals of Kentucky (pre-1976)
• Decided: May 25, 1926
• Status: Published

Opinion

Opinion of the Court by

Commissioner Hobson

Affirming.

The grand jury of Hart county returned an indictment against George Miller, Willie Fred, Dick Duke and Fen Mansfield for the offense of unlawfully manufacturing intoxicating liquors. On the trial of the case the jury returned a verdict finding the defendants George Miller, Willie Fred and Dick Duke guilty as charged in the indictment and fixing their punishment each -at a fine of $100.00 and confinement in jail for sixty days. Willie Fred appeals.

The only ground relied on for reversal is that the verdict is palpably against the evidence. The proof for the Commonwealth showed that the officers having information that a still was running at the place referred to went through the woods to it and when they got out of the woods within a few feet of the still they found it in full blast with the four defendants standing around it. They found some 500 gallons of mash and 20 gallons of sing-lings; whiskey was running out of the still into a vessel. None of the defendants were at work when the officers appeared. Mansfield jumped into the river, which was nearby and Willie Fred ran. When he ran off and refused to halt one of the officers fired a pistol and ran after him and overtook him. On the other hand the proof by Fred, Miller and Mansfield was in effect that Miller and Tom Fred were running the still; Tom is a brother of Willie Fred and had gone to “Florida when the case was tried; that Willie Fred and Mansfield were on the river fishing that morning and needed a trot line; that Fred had gone to get the trot line in a canoe and after they had fished awhile, as he and Mansfield were passing in the canoe, Miller called to them- and invited 'them to come up and get a drink of beer; they accepted the invitation and had only been at the still a few minutes for this purpose when the officers arrived and before this had. nothing to do with the still and no knowledge of it.

The jury is the tribunal established by law to pass upon the credibility of the witnesses. The verdict of the jury is sustained by these circumstances: Fred ran away with all the speed he could make when the officers appeared. He knew the.officers; they all lived nearby. There was no reason why he should be afraid of them; a man does not usually run away from his friends. The testimony of all the officers showed that as they came along they had a view of the river and Fred and Mansfield were not on the river in the canoe as they testified. In addition to this it was shown that Miller had bought 100 pounds of sugar and gotten some cans needed for the still a few days before and Fred was with him on this occasion. It was also shown that a few days after the still was taken Fred was with Miller when this sugar was sold, and that when arrested Fred went to a barn nearby and changed his clothes. These facts tend strongly to sustain the finding of the jury and we cannot say their finding is palpably against the evidence. A jury of twelve men of the vicinage having more or less knowledge of local conditions and seeing and hearing the witnesses is peculiarly qualified to pass on such questions of fact, and their unanimous finding, approved by the circuit judge, who also saw and heard the witnesses, cannot be disturbed here unless palpably against the evidence.

Judgment affirmed.