Shepard v. Commonwealth

264 S.W. 1077, 204 Ky. 545, 1924 Ky. LEXIS 495

• Court: Court of Appeals of Kentucky
• Decided: September 26, 1924
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Sampson—

Affirming.

Whether appellant Shepard should be adjudged entitled to a reversal of the judgment in this case and granted a new trial depends upon the correctness of the rulings of the court, (1) in allowing evidence to which he objected to be introduced by the Commonwealth to the effect that the witness, sheriff of Montgomery county, was acquainted with appellant and' that his reputation was bad for trafficking in liquor; and (2) whether the verdict and judgment against appellant is supported by sufficient evidence, or is flagrantly against the weight thereof.

The .principal witness for the Commonwealth was Hallie Trimble, who testified that he and two other persons drove in an automobile from town to Slate creek bridge in Montgomery county in search of appellant Shepaid in the hope of securing whiskey from him. When they reached the bridge the witness left the other two persons in the automobile and went to the home of Shepard. There he was informed that Shepard was down the creek; he went down the creek and found him in about one-half mile of the bridge at the home of another citizen. The witness states positively he inquired of Shepard if he had any whiskey and was informed by Shepard that he had. Thereupon the witness went with Shepard into the woods nearby, where they found two containers of moonshine whiskey, and the witness bought of Shepard one-half gallon thereof and paid him six ($6.00) dollars therefor. In addition to this evidence the sheriff and his deputy testified that the reputation of appellant Shepard for trafficking in whiskey was bad.

While appellant denied that he sold whiskey on the occasion mentioned and called other witnesses to support his evidence, the jury was entirely warranted in finding appellant guilty upon the testimony of Trimble alone. But when it was shown by other evidence that appellant’s reputation for handling whiskey in violation of law was bad, the jury, had a strong case against him and did not err in finding him guilty. The verdict was, therefore, not flagrantly against the evidence, but in accordance therewith.

While there are some contradictions in the evidence of the witness for the Commonwealth these addressed themselves directly to the jury. It had a right, after seeing and hearing the witnesses both for the Commonwealth and the defendant, to determine which related the facts.

In other words, the jury is the sole judge of the credibility of the witnesses. Although there were some slight contradictions in the evidence of the chief witness for the' Commonwealth, the jury was able to reconcile all the evidence, at least it did so to the extent of finding appellant guilty.

Section 15 of the Bash-Gullion act provides that “In any prosecution or proceeding for any violation of this act, the general reputation of the defendant or defendants for moonshining, bootlegging, or being engaged in the illicit manufacture of, or trade in intoxicating liquor shall be admissible in evidence against said defendant or defendants. ’ ’

Under that section the Commonwealth was entitled to prove the reputation of appellant for making, selling or handling liquor in violation of law.' The record does not show that the evidence of appellant’s reputation was acquired after the sale in the case mentioned in the indictment. His general reputation for trading in intoxicating liquors was shown to be bad. We think the statute above quoted was broad enough to warrant the introduction of the evidence as given by the witness. Therefore, there was no error prejudicial to the substantial rights of appellant.

Judgment affirmed.