214 Ky. 703
Court of Appeals of Kentucky.
May 25, 1926.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Bill Bailey was convicted of possessing intoxicating liquor, and he appeals.

This is an appeal from a judgment convicting appellant of possessing intoxicating liquor and fixing his punishment at a fine of $300 and 30 days' imprisonment in the county jail.

Error of the court in refusing a continuance is the first ground urged for reversal. The continuance was asked on account of the absence of the witnesses George Brewner, Frank Brewner, and Dick Smith. The affidavits alleged that, if George Brewner and Frank Brewner were present, they would testify that about 6 weeks before that time they brought 70 fruit jars from Wallins creek and left them at George Hammond's store at Girdler in Knox county for appellant; that in handling the jars they noticed that some of them had the odor of liquor, and that in some of them there might have been a small quantity of liquor which was full of dregs; that Dick Smith, if present, would testify that he hauled the 70 fruit jars from George Hammond's store to appellant's home; that some of the jars had had liquor in them, and that some contained a small quantity of dreggy liquid which had the odor of liquor. It is impossible to see how the evidence of these witnesses would have benefited appellant on the trial, even if they had been present. The custom of using fruit jars for the storage and sale of moonshine whisky is so well known that their purchase in large quantities by one not engaged in putting up fruit, even though it be claimed that some of them had had liquor in them before their delivery, tends as strongly to show his guilt as his innocence of the crime of possessing intoxicating liquor. Therefore, in view of the character of the evidence, and of the court's action in permitting the affidavits to be read as the depositions of the absent witnesses, it is at once apparent that appellant's substantial rights were in no wise prejudiced by the refusal of the continuance.

As the commonwealth proved without contradiction that certain officers, acting under a valid search warrant, searched appellant's premises and found in the only room that was locked two fruit jars, one of which, at least, contained moonshine whisky, and that appellant's reputation for dealing in moonshine whisky was bad, there is no merit in the contention that appellant's motion for a peremptory instruction should have been sustained.

Finally, it is insisted that the court erred in giving oral instructions to the jury. However, appellant did not object to the action of the court, and it is well settled that the failure to give written instructions in misdemeanor cases will be treated as waived, if no objection is made at the time.

Judgment affirmed.

Ky.App. 1926.


283 S.W. 1041, 214 Ky. 703


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