Opinion
Decided April 24, 1925.
Appeal from Johnson Circuit Court.
J.B. CLARK for appellant.
FRANK E. DAUGHERTY, Attorney General, and GARDNER K. BYERS, Assistant Attorney General, for appellee.
Affirming.
The appellant, Roy Fairchild, by this appeal seeks the reversal of a judgment of the Johnson circuit court, entered pursuant to the verdict of a jury finding him guilty of the offense, duly charged by indictiment, of unlawfully selling intoxicating liquor and fixing his punishment at a fine of $100.00 and imprisonment of thirty days in jail.
The grounds assigned by the appellant's counsel for the reversal of the judgment are, that the trial court committed error to the prejudice of his substantial rights. First: In overruling his motion, made at the conclusion of all the evidence, for an instruction peremptorily directing his acquittal by verdict of the jury. Second: In overruling his motion for a new trial, because the verdict of the jury was flagrantly against the evidence.
It appears from the bill of evidence that Clark Ratcliff, the single witness introduced in behalf of the Commonwealth, testified that he purchased and received of the appellant, at the latter's residence and within twelve months before the finding of the indictment, a half gallon of moonshine whiskey for which he agreed to pay him $97.00 and that this whiskey was on the same day carried by the witness to his own home, and on the following day to Rockhouse. The witness admitted that shortly after his purchase of the whiskey, he was indicted, tried and fined for having it in his possession. He also admitted that Press and Leander Ratcliff, Warnie Fairchild, Milford Palfrey and Burns McCarthy were at the home of appellant when he arrived there, but did not state that they, or any of them, witnessed or knew of his purchase of the whiskey of appellant. It was likewise admitted by the witness on his cross-examination that he had previously "felt sore" toward the appellant, but had gotten over that and at the time of buying the whiskey and giving his testimony was on good terms with him.
The appellant, in testifying in his own behalf, denied that he sold the witness Clark Ratcliff a half gallon or any quantity of whiskey as stated by the latter. He admitted, however, that Ratcliff on the occasion in question attempted to purchase whiskey of him, but claimed that he refused to sell him any. The testimony of the appellant was corroborated in many respects by that of Leander and Press Ratcliff, Burns McCarthy and Warnie Fairchild, all of whom were introduced as witnesses in his behalf. These several witnesses testified that they were at the home of the appellant on the occasion named by Clark Ratcliff, the Commonwealth's witness, and that they did not see or know of his purchasing any whiskey. Three of them, Fairchild and Leander and Press Ratcliff, claimed to have heard Clark Rafcliff attempt to buy whiskey of the appellant and to have heard the latter tell him he had none; and Leander Ratcliff to have heard appellant at the same time also tell Clark Ratcliff that he had "quit fooling with it." McCarthy admitted that when he left the home of the appellant Clark Ratcliff was still there; and none of the other three witnesses for the appellant named testified that he remained with the latter and Clark Ratcliff all the time they were together, or saw Clark leave the appellant's home. It was not, therefore, shown by the appellant's witnesses or any of them that there were not opportunities for the sale of the whiskey by the appellant to Clark Ratcliff when they were not present.
It readily will be seen from what has been said of the evidence that it was quite conflicting. But that fact will not justify a reversal of the judgment. In this jurisdiction it is the well recognized rule that more superiority in the number of witnesses against a finding will not authorize a reversal of a judgment if there is any substantial evidence supporting it. In the trial of a criminal case the jury is not compelled to accept as literally true the testimony of any witness or set of witnesses. Nor will the mere fact that the Commonwealth's side of the case is made to rest upon the testimony of a single witness, and that of the defendant upon that of a number of witnesses, authorize the trial court to take the case from the jury by directing a verdict for the defendant. But it is within the province of the jury to believe a single witness for the one party as against a number of witnesses testifying in behalf of the other party. Kenedy Wigginton v. Comlth., 194 Ky. 502; Cloninger v. Comlth., 191 Ky. 841; May v. Comlth., 164 Ky. 109. As in this case the jury accepted the positive testimony of the one witness for the Commonwealth whose reputation for truth and veracity was unattacked, and much of that of the appellant's witnesses was of a negative character, the verdict cannot be assailed or set aside upon the ground that it is unsupported by or flagrantly against the evidence. It is, therefore, our opinion that neither of the appellant's contentions should be sustained. Wherefore, the judgment is affirmed.