Harvey v. Commonwealth

265 S.W. 833, 205 Ky. 356, 1924 Ky. LEXIS 122

• Court: Court of Appeals of Kentucky
• Decided: October 31, 1924
• Status: Published

Opinion

Opinion of the Court by

Judge O’Neal

Reversing.

Appellant was convicted in the Lawrence circuit court of the offense of unlawfully manufacturing intoxicating liquor and his punishment fixed at a fine of $300.00 and six months ’ confinement in the counity jail, and he appeals.

The only evidence of appellant’s guilt of the offense charged was that of an accomplice. The only corroborating evidence was that of two officers who testified to finding a dismantled still near the place pointed out by the accomplice as the place where appellant manufactured the intoxicating liquor. The still is not identified as one used by or belonging to appellant, and it was not found on or near his premises or in his possession or at a place frequented by him. In short, there was a total absence of such evidence corroborating that of the self-confessed accomplice and tending to connect appellant with the commission of the offense charged, as is required by section 2ál of the Criminal Code. It follows, therefore, that appellant’s motion for a peremptory instruction should have been sustained. The learned attorney general in his brief for the Commonwealth frankly confesses the error, and our examination of the record convinces us of it.

Wherefore, the judgment is reversed.