SHORT v. COMMONWEALTH

OPINION OF THE COURT BY TURNER, COMMISSIONER

Affirming.

Appellant and one Kirk were jointly indicted charged with the unlawful manufacture of spirituous liquors.

On his separate trial appellant was found guilty and has appealed.

The facts disclosed by the evidence for the Commonwealth are that the sheriff, a deputy sheriff and a constable of the county, armed with a warrant for the arrest of one Hilmanberg charged with a misdemeanor, went to the home or reputed home of Hilmanberg in a remote section of the county, about dusk one evening, to execute the warrant. Hilmanberg had the title to this property and had been living there. When they first reached the house they found it apparently unoccupied, and then went to another house a short distance away, and in about an hour and a half again approached the Hilmanberg house. This time they saw unmistakable evidence that some one was in the house, and the party approached the house and the sheriff, calling Hilmanberg's name, demanded that he open the door, but there being no response he pushed the outer door open and entered one of the rooms, and there the officers found appellant and Kirk in the act of operating an illicit still in that room, but did not find Hilmanberg.

The officers promptly arrested both appellant and Kirk, and this indictment resulted.

The grounds for reversal, are, (1) that the evidence so disclosed to the officers was incompetent because they had no search warrant, and therefore appellant was entitled to a directed verdict of not guilty, and (2) because the court in its instruction authorized a conviction of appellant if they believed he was at the time aiding or abetting Kirk in the unlawful manufacture.

The first contention is based upon the idea that the officers had no right to search the premises without a search warrant, defendants being at the time the only ones in possession of the property; and upon the further contention that appellant had previously rented the property from Hilmanberg and was actually in possession of it under his rental contract, and that therefore it was his domicile and not that of Hilmanberg. The defendant, however, offered no evidence whatsoever upon this or any other issue, although there is a stipulation that Hilmanberg had a deed of record to the property, and that appellant claimed in a motion for a continuance "to have rented this property from Bud Hilmanberg and that he was in the possession of same as a tenant of said Hilmanberg at the time the officers arrested him in the house on the Hilmanberg farm"

The evidence, however, in the record discloses not only that Hilmanberg had a deed for the place, but had actually lived there with his family a very short time before this occurrence; it showed that in one of the rooms there were some household goods, but their ownership is not disclosed. It further shows that there were no evidences at the time the officers entered that any family was in actual occupation of the premises, and that Short and Kirk were the only occupants of the house at the time. From this evidence it is apparent that Hilmanberg, whether he and his family were actually occupying the house or not, was in possession of the same, and whether appellant and Kirk were at the time mere trespassers upon his property without his knowledge, or whether they were then in the house by and with the consent or acquiescence of Hilmanberg is not made to appear. Under these circumstances, in the absence of affirmative evidence that appellant was in possession under a contract of lease from Hilmanberg, it must be held that Hilmanberg was in possession of the property.

The mere claim by appellant in his application for a continuance that he had leased the property from Hilmanberg and was in possession of it thereunder, is no evidence of the truth of those assertions, and do not overcome or even controvert the evidence of the Commonwealth tending to show that Hilmanberg was not only the owner but in the possession of the property.

Under the provisions, therefore, of section 40 of the Criminal Code and section 4583, Ky. Stats., the officer having a valid warrant for the arrest of Hilmanberg and he being the owner and in possession of that property, the officer had the right to go upon the premises and to break open the door to the house. And being rightfully upon the promises and having rightfully pushed open the door, the evidence there disclosed to him was competent either against the owner and possessor of the house or other persons whom he might have seen in the act of violating the law. Hawkins v. Com., 14 B. M. 318; American Central Insurance Company v. Stearns Lumber Co., 145 Ky. 255.

Upon the entry of the officers both appellant and Kirk were engaged in some activity connected with the operation of the still, but it does not disclose which was in charge of the operation. Under these circumstances the court in its instructions authorized a conviction of appellant as principal if he aided and abetted Kirk in the operation of the still. It is contended for appellant that this was error because aiding and abetting is a different offense from that of manufacturing, and while technically this may be true, the Rash-Gullion Act specifically provides (section 2554a-3) that one knowingly aiding or abetting another in the violation of any of the provisions of the act "shall be deemed a principal and punished as such." To all intents and purposes, therefore, the statute itself makes one aiding and abetting a principal, and under the evidence in this case the instruction was proper.

Something is said in appellant's brief about the error of the court in denying him a continuance, although it is not stated as a ground of reversal in the brief. Our examination, however, fails to disclose any merit in this question.

Judgment affirmed.