| Case one of two |
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| 23 Ky.L.Rptr. 1979 |
| Court of Appeals of Kentucky. |
| HINKLE v. COMMONWEALTH. |
| Feb. 26, 1902. |
| ACTION: Affirmed. |
Appeal from circuit court, Knox county. "Not to be officially reported." George Hinkle was convicted of the offense of selling liquor in violation of a local prohibitory law, and he appeals. GUFFY, C. J. The indictment in this case accuses the appellant of the offense of selling, directly and indirectly, spirituous, vinous, and malt liquors, and intoxicating beverages, in quantities of less than five gallons, within five miles of Union College, located in Barbourville, Knox county, Ky., committed in manner and form as follows: "The said George Hinkle did on the 15th day of July, 1900, in the county aforesaid, unlawfully sell, directly and indirectly, spirituous, vinous, and malt liquors, and intoxicating beverages, by the drink, half pint, quart, gallon, and in other quantities less than five gallons, to Wm. Gregory, within five miles of Union College, located in Barbourville, Knox county, Kentucky, in violation of the provisions of act of the general assembly of the commonwealth of Kentucky entitled 'An act to prohibit the sale of spirituous, vinous or malt liquors, or intoxicating beverage, in quantities less than ten gallons, within five miles of Union College, in Knox county' which act became a law, and was approved May 7, 1886, against the peace and dignity of the commonwealth." A trial resulted in a verdict and judgment finding the defendant guilty, and fixing his fine at $100; and, his motion for a new trial having been overruled, he prosecutes this appeal. The grounds relied upon for a new trial were: " (1) Because the court erred in overruling the demurrer to the indictment. (2) Because the court erred in overruling defendant's motion to find him not guilty at the close of the evidence for the plaintiff. (3) Because the court erred in overruling the defendant's motion to instruct the jury to find defendant not guilty at the close of all the evidence. (4) Because the court misinstructed the jury, and refused to properly instruct the jury. (5) Because of the misconduct of the county attorney in the argument of the case. (6) Because the verdict is against the law and evidence. (7) Because the court erred in refusing to require the attorney for the commonwealth to state the case to the jury." It seems to us that the indictment is sufficient; hence the demurrer was properly overruled. It appears from the bill of exceptions that the county attorney read to the jury the indictment and the indorsements thereon, and sat down, to which the defendant objected, whereupon the attorney for the commonwealth said to the jury the indictment was his statement, and this is all the statement to the jury. It does not appear that the plea of not guilty was not entered or stated; hence the inference is that the plea of not guilty was properly entered. We are not aware of any rule of law that requires the commonwealth to state in detail the testimony which is expected to be introduced. We therefore conclude that there was no error in the proceedings in this regard. The testimony of the commonwealth is, in substance, as stated by Wm. Gregory, as follows: "I saw the defendant standing near Stanfill's store, and he was taking names for a 'divide,'--I cannot say that he took all the names,--and told him that I wanted a pint of whisky. He took a paper from his pocket and wrote my name on it. I gave him 25c., and we went down towards the distillery. Some time after this I heard that they had the whisky made up, and I went to the distillery, or a little house near it, and they were dividing out the whisky. My name was called, and I spoke up and answered. Somebody, but I do not remember who, drew my pint of whisky and gave it to me. I got it and left. I did not get this whisky from the defendant, George Hinkle. I do not know where he was when it was drawn. This was within five miles of Union College, and within Knox county, and within twelve months before this indictment was made." Thereupon the defendant moved the court to find the defendant not guilty, which motion was overruled, with exceptions. The defendant testified as follows: "At the time stated by the witness, he asked me to take his money and put it in with a number of others who were preparing to purchase ten gallons of whisky from the Chamberlain & Hinkle Distillery, in Barbourville. As an accommodation to him, I did so. I was preparing to go home, anyhow. My home is beyond the distillery, and as I went home I stopped at a little house near the distillery, where several men had gotten together. Some of them had a list of names, and a pile of money was laying by. I told the man who was taking the names to put down the name of Wm. Gregory, and whoever it was did so. I do not remember the man who had the list. I do not know whether I knew this man, or not, who had the list. He took Gregory's name, and I laid Gregory's money down in the pile and went on home. I was not back there. Do not know whether Gregory got the whisky or not. I did not deliver it to him. I had no interest in the whisky, and was not in any way connected, as agent or otherwise, with the owners of the whisky. I do not know whose whisky it was, and do not know who had control of the house." The defendant again moved the court to find him not guilty, which motion was overruled, with exceptions. The court instructed the jury as follows: "Gentlemen of the Jury: If you believe from the evidence, beyond a reasonable doubt, that the defendant, George Hinkle, in Knox county, within twelve months before the finding of the indictment herein, and within five miles of Union College, sold to the witness, directly or indirectly, spirituous, vinous, or malt liquors, or whisky or brandy, in quantities less than five gallons, you will find him guilty as charged in the indictment, and fix his punishment at a fine of not less than $100 nor more than $200 in your discretion. "If you believe from the evidence, beyond a reasonable doubt, that the defendant acted as agent, or assisted Isaac Hinkle or W. B. Chamberlain, directly or indirectly, in selling said liquors in quantities as stated in instruction No. 1, whether he had any interest or not, you will find him guilty as charged in the indictment, and fix his punishment as stated in instruction No. 1. "If you believe from the evidence that the defendant acted in good faith, and purely as a matter of accommodation, in procuring the whisky for the witness, and had no interest therein, and that he was not acting as agent of Isaac Hinkle or any other person in selling said liquor, etc., you will find him not guilty. "If the jury have a reasonable doubt of the defendant having been proven guilty, they will find him not guilty." We are of opinion that the instructions given by the court correctly presented the law applicable to the case on trial. The testimony of the witness introduced for the commonwealth seems clearly to authorize the jury to believe that the defendant sold to, and arranged with the witness to procure for him, a pint of whisky, which agreement and contract were fully proven; and the mere fact that the defendant was not present when the delivery of the whisky was made in no wise excuses him from the effect of the contract, or sale made to the witness. If it be conceded that the testimony of the defendant contradicted the testimony of the witness for the commonwealth, it was the province of the jury to weigh and determine the testimony, and determine as to the real truth of the transaction. The Code of Practice does not authorize this court to reverse a judgment on account of the weight of evidence; the provision being that, if there is any evidence tending to show the guilt of the party, this court cannot reverse on account of the insufficiency of the evidence. It may not be improper to add that the testimony in this case tends to show that the defendant was arranging to sell to the witness a pint of whisky, and that the whole transaction is but an attempt to avoid the provisions of the law prohibiting the sale of whisky by retail within the prohibited distance of Union College. After a careful consideration of the law and facts in this case, we conclude that the judgment is sustained by the law and facts, and the judgment appealed from is therefore affirmed. Ky.App. 1902. HINKLE v. COMMONWEALTH. 66 S.W. 1020, 23 Ky.L.Rptr. 1979 |
| Case two of two |
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| 23 Ky.L.Rptr. 1988 |
| Court of Appeals of Kentucky. |
| HINKLE v. COMMONWEALTH. |
| Feb. 26, 1902. |
| ACTION: Affirmed. |
Appeal from circuit court, Knox county. "Not to be officially reported." George Hinkle was convicted of the offense of forcibly effecting his escape from an officer, and he appeals. GUFFY, C. J. The defendant in this case was indicted, tried, convicted, and sentenced to six months' imprisonment in the county jail upon an indictment charging him with forcibly effecting his escape from an officer at a time when he was lawfully arrested, etc., and, his motion for a new trial having been overruled, he prosecutes this appeal. The indictment reads as follows: "The grand jury of Knox county, in the name and by the authority of the commonwealth of Kentucky, accuses George Hinkle of the offense of forcibly effecting his escape from an officer at a time when he was lawfully arrested and in custody upon a charge for a violation of the criminal and penal laws, committed in manner and form as follows, to wit: The said Hinkle did, on the 5th day of December, 1900, in the county, circuit, and state aforesaid, and before the finding of the indictment herein, unlawfully and forcibly effect his escape and escaped from A. M. Hemphill, who was at the time a deputy sheriff of Knox county, Kentucky, and acting as such, who had the said Hinkle lawfully under arrest and in his custody as deputy sheriff, aforesaid, upon a charge of assault and battery upon the person of Harve Steele; against the peace and dignity of the commonwealth of Kentucky." The grounds relied upon for a new trial are, in substance: (1) That the court erred in overruling the demurrer to the indictment; (2) because the court erred in permitting incompetent evidence prejudicial to the defendant to go to the jury; (3) because the court erred in refusing competent evidence favorable to defendant, and offered by him; (4) because the court misinstructed the jury, and refused to properly instruct the same; (5) because the verdict is against the law and evidence; (6) because of the misconduct of the attorney for the commonwealth in the argument of the case; (7) because the court erred in overruling defendant's motion, at the close of the plaintiff's evidence, to instruct the jury to find him not guilty, and in overruling defendant's motion to instruct the jury to find him not guilty at the close of all the evidence. This indictment reads as follows: "If a prisoner fined, on a sentence of imprisonment or to be whipped or under a capias escapes jail, or if a person lawfully arrested upon a charge for a violation of the criminal and penal laws forcibly or by bribery effects his escape from an officer, or guard, he shall be confined in jail not less than six nor more than twelve months." This indictment was evidently found under this section of the statute, and it has often been held that, where a statute creates an offense, an indictment following the language of the statute is sufficient. It therefore follows that the demurrer to the indictment was properly overruled. It is not necessary, in an indictment under this section, to set out by specific facts that the defendant was legally under arrest; nor is it necessary to state the acts by which the defendant effected his escape from the officer. We fail to see that the court erred as to the admission or rejection of testimony upon the trial of the cause. We deem it unnecessary to recite the testimony introduced in the action. We may, however, remark that the testimony upon the part of the commonwealth tends to show that the deputy sheriff, Hemphill, had a warrant for the arrest of the defendant, and that it was made known to the defendant that said Hemphill had such warrant, and that the defendant accompanied Hemphill to and in the presence of the magistrate who had issued the warrant, and that defendant had in his hands or in his possession a pistol, and, being required to surrender the same, refused so to do, and when the deputy sheriff attempted to take the pistol from him he (defendant) refused to surrender the same, and by demonstrations of violence, and by putting the officer in fear of personal injury, escaped from or left the place, and refused to surrender the pistol or submit himself to the control of the magistrate or the deputy sheriff. It is true that other evidence was introduced tending to show that a former deputy sheriff had assumed to place the defendant under arrest, and sent him to a different place to remain; but it does not appear that the first-named deputy sheriff (who was the father of the defendant) had any warrant for the arrest of the defendant. It also appears that the defendant claimed that one Steele, with whom he had had a difficulty, and from whom he had taken the pistol in question, was seeking to obtain and threatening to obtain a pistol for the purpose of shooting the defendant. This, in our opinion, does not constitute a sufficient defense for the defendant, and did not authorize him to escape from the deputy sheriff who had the warrant of arrest, and who, in obedience to the magistrate, attempted to obtain control of the defendant and disarm him. The presumption must be indulged that the officer of the law would see to it that a prisoner under arrest was protected from violence. In addition to all this, the jury, who heard all of the testimony, must be presumed to have considered the evidence, and the most favorable view that can be taken in behalf of the defendant is that the evidence was conflicting, and under the provisions of the Code of Practice this court cannot reverse on account of the insufficiency of the evidence, if there be any evidence tending to show the defendant guilty of the offense charged. We fail to perceive that the attorney for the commonwealth was required to do more than he did in stating his case after reading the indictment to the jury, and it would seem that a plea of not guilty was entered. We are not aware of any rule of law that imperatively requires the attorney for the commonwealth to state more in detail the character of the charge or evidence to be introduced in support thereof. Judgment affirmed. Ky.App. 1902. HINKLE v. COMMONWEALTH. 66 S.W. 816, 23 Ky.L.Rptr. 1988 |
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