Green v. Commonwealth

268 S.W. 1081, 207 Ky. 188, 1925 Ky. LEXIS 50

• Court: Court of Appeals of Kentucky
• Decided: February 6, 1925
• Status: Published

Opinion

Opinion of the Court by

Judge Clarke

Affirming.

Appellant was convicted of unlawfully selling Jamaica ginger for beverage purposes, and while be testified that be did not sell but gave same to tbe prosecuting witness for medicinal purposes, tbe evidence of tbe prosecuting witness, as well as tbe attendant circumstances, fully sustains tbe verdict of tbe jury that the admitted transaction was a sale and for beverage purposes.

Hence tbe contention that the verdict is flagrantly against tbe evidence cannot be sustained.

Tbe only other contention is that the court committed prejudicial error in refusing to exclude all of the evidence of tbe prosecuting witness when recalled after the defendant bad closed bis evidence. This is upon tbe theory that this evidence was admissible only in chief and not in rebuttal. This is true as to much of this evidence, but there was no objection while tbe evidence was being introduced, and tbe motion made at its completion was to exclude all of it, which was properly overruled, since a part of it was properly rebuttal evidence.

There being no objection to tbe introduction of that part of this evidence that should have been introduced in chief, nor any motion to exclude that part of it, tbe question as to 'whether or not it was improperly admitted was not saved and is not here. Hall v. Commonwealth, 189 Ky. 72, 224 S. W. 492; Lowery v. Commonwealth, 191 Ky. 657, 231 S. W. 234.

Perceiving no error prejudicial to appellant’s substantial rights, the judgment is affirmed.