Shelton v. Commonwealth
229 S.W.2d 444
April 21, 1950.
ACTION: Judgment reversed with directions.

Noah Shelton was convicted in the Circuit Court, Knox County, J. B. Johnson, J., of the offense of possessing a moonshine still, and he appealed. The Court of Appeals, Latimer, J., held that evidence that path ran from rear of defendant's home to still was insufficient to sustain conviction of the offense.

LATIMER, Justice
Appellant was convicted of the offense of possessing a 'moonshine still' and given a fine of $250 and 30 days in jail.

The chief ground urged for reversal is insufficiency of evidence. Since we have concluded the court erred in overruling motion for directed verdict based on that ground, it will be unnecessary to discuss any of the other grounds urged.

The record discloses that while the sheriff and two deputies were conducting a search for stills in the vicinity of appellant's home, they observed a path leading from the rear of appellant's home. They followed this path through appellant's garden and up a mountainside. Some few hundred yards from the home of appellant they found a copper still of some 50 or 60 gallons capacity and some mash. The fire had been 'pulled' but the coals were yet hot. This same year other stills had been found in the same locality.

One witness testified that at the time the officers were making the search, he saw appellant's boy, about 100 yards from the still, walking toward the path leading to appellant's house. That is the only evidence, aside from the proof of the path, in any way to connect appellant with the still. There is no evidence connecting him with the ownership or possession of the still, or the land upon which the still was found. There is no evidence that appellant was ever seen near the still or was in any way linked with the operation thereof.

Appellant explained the existence of this path. He said it was the path to his garden; to a potato patch on the mountain; to a spring from which water was procured for family use; and to a lot where he kept his cow at night. Thus, it will be seen that the facts and circumstances concerning the path as proved by the Commonwealth, being admitted as true, can be as readily reconciled with appellant's innocence as with his guilt.

We conclude that the court should have directed a verdict for defendant.

Wherefore, the judgment is reversed with directions, that if the evidence is the same upon a succeeding trial, to direct a verdict for defendant.

229 S.W.2d 444, 312 Ky. 650

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