Harry v. Commonwealth

Court of Appeals of Kentucky

Harry v. Commonwealth

268 S.W. 823, 207 Ky. 50, 1925 Ky. LEXIS 11

DecidedJanuary 30, 1925

StatusPublished

This text of 268 S.W. 823 (Harry v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harry v. Commonwealth, 268 S.W. 823, 207 Ky. 50, 1925 Ky. LEXIS 11 (Ky. Ct. App. 1925).

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Opinion

[51]*51Opinion op the Court by

Judge Clarke

Affirming.

Appellant was convicted of unlawfully possessing whiskey, and his punishment fixed at a fine of $100.00 and confinement in jail for 30 days.

The first insistence for a reversial is that the court erred in the admission of evidence obtained by a search of appellant’s person, claimed to have been made illegally.

The officer who made the search testified that the defendant, in his presence, took a pistol out of his inside coat pocket and then put it back in the pocket, and that he arrested him for carrying a concealed deadly weapon, and after having so arrested him, searched his person and found a pint of moonshine whiskey in his left hip-pocket. Another witness testified that just before the arrest he saw the defendant take a pistol out of his inside coat pocket and replace it. This being true, the arrest and search of defendant upon the charge of carrying a concealed deadly weapon was authorized without a warrant of arrest or a search warrant, since the offense, a misdemeanor, was committde in the presence of the officer.

This testimony was denied by the defendant, and the question of fact thus presented was submitted to the jury by an instruction that is not criticised, hence there is no merit in this contention.

The next insistence is that the court erred in refusing to permit the defendant, upon cross-examination of a witness who testified that the reputation of the arresting officer for morality was good, to prove that he had heard that the arresting officer was in the habit of getting drunk. We need not decide whether this was error or not, since we are clearly of the opinion that if error it was not prejudicial, as there was evidence not only that the officer’s reputation was not good but also that he was drinking at the time of the arrest.

The final contention is that the verdict is flagrantly against the evidence, but there is no" merit in this contention, since, while the evidence is conflicting as to whether or not the defendant had the liquor in his possession, its preponderance supports the verdict.

Judgment affirmed.

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[51]*51Opinion op the Court by

Judge Clarke

Affirming.

Appellant was convicted of unlawfully possessing whiskey, and his punishment fixed at a fine of $100.00 and confinement in jail for 30 days.

The first insistence for a reversial is that the court erred in the admission of evidence obtained by a search of appellant’s person, claimed to have been made illegally.

The officer who made the search testified that the defendant, in his presence, took a pistol out of his inside coat pocket and then put it back in the pocket, and that he arrested him for carrying a concealed deadly weapon, and after having so arrested him, searched his person and found a pint of moonshine whiskey in his left hip-pocket. Another witness testified that just before the arrest he saw the defendant take a pistol out of his inside coat pocket and replace it. This being true, the arrest and search of defendant upon the charge of carrying a concealed deadly weapon was authorized without a warrant of arrest or a search warrant, since the offense, a misdemeanor, was committde in the presence of the officer.

This testimony was denied by the defendant, and the question of fact thus presented was submitted to the jury by an instruction that is not criticised, hence there is no merit in this contention.

The next insistence is that the court erred in refusing to permit the defendant, upon cross-examination of a witness who testified that the reputation of the arresting officer for morality was good, to prove that he had heard that the arresting officer was in the habit of getting drunk. We need not decide whether this was error or not, since we are clearly of the opinion that if error it was not prejudicial, as there was evidence not only that the officer’s reputation was not good but also that he was drinking at the time of the arrest.

The final contention is that the verdict is flagrantly against the evidence, but there is no" merit in this contention, since, while the evidence is conflicting as to whether or not the defendant had the liquor in his possession, its preponderance supports the verdict.

Judgment affirmed.

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Bluebook (online)

268 S.W. 823, 207 Ky. 50, 1925 Ky. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harry-v-commonwealth-kyctapp-1925.