
    Snyder v. Commonwealth.
    (Decided June 8, 1923.)
    Appeal from McCracken Circuit Court.
    1. Criminal Law&emdash;Failure to Copy Verdict in Judgment Must be Questioned on Motion for New Trial.&emdash;The failure of the cleric to copy the verdict in the judgment at the time the latter was entered, though it was copied into the judgment under order of the court before the transcript on appeal was prepared, cannot be complained of by accused on appeal, where he did not rely thereon in his motion and grounds for a new trial.
    2. Arrest&emdash;Warrant Charging Possession of Intoxicating Liquors Held Sufficient.&emdash;A warrant issued by a county judge accusing defendant of unlawfully having in possession spirituous, vinous, malt, and intoxicating liquors not for sacramental, scientific, medical, or mechanical purposes, was sufficiently definite and certain.
    3. Criminal Law&emdash;Evidence of Purchase in Presence of Witness Held Competent on Charge of Unlawful Possession.&emdash;In a prosecution for unlawful possession of intoxicating liquors, testimony by the prosecuting witness that, at the time he saw the liquor in possession of defendant, defendant sold some of it to a purchaser, held competent.
    
      i. Intoxicating Liquors&emdash;Evidence Held Sufficient to Sustain Conviction for Unlawful Possession.&emdash;Evidence that witness had seen white mule which looked and smelled like whiskey, in defendant’s possession, and that it' was sold to those who asked for whiskey, was sufficient, if believed by the jury, to sustain a conviction for unlawful possession of intoxicating liquors.
    5. Criminal Law&emdash;Incompetent Declaration Which was Promptly Excluded by Trial Judge Held Not Prejudicial.&emdash;Where prosecuting witness, when asked how he came to go to defendant’s place of business, stated his friend invited him to show him how easy it was to buy a drink in the town, objection to which statement was sustained and the evidence excluded by the trial judge, the admission of the statement was not prejudicial to accused in view of the prompt action of the trial judge.
    6. Criminal Law&emdash;Permitting Affidavit to be Read as Deposition of Absent Witness Prevents Complaint of Refusal of Continuance.&emdash; Where accused moved for continuance on the ground of the absence of a witness and the Commonwealth allowed the affidavit showing the testimony the witness would give if present to be read as a deposition of the absent witness, there was no error, of which accused can complain, in refusing the continuance.
    CROSSLAND & CROSSLAND for appellant.
    THOS. B. McGREGOR, Attorney General, and CHAS. W. LOGAN, Assistant Attorney General, for appellee.
   Opinion op the Court by

Chiep Justice Sampson — ■

Affirming.

The warrant issued in this case by the judge of the county court accuses appellant Snyder of the offense of unlawfully having in his possession spirituous, vinous, malt and intoxicating liquors not for sacramental, scientific, medical or mechanical purposes. No defense was made by appellant before the county judg-e, but when the judgment was entered he appealed to the circuit court, where a trial was had, resulting in the conviction of appellant and the infliction of a fine of $100.00 and imprisonment for thirty days. From the judgment entered upon the verdict Snyder appeals, assigning eight reasons why the judgment should be reversed'.

His chief reliance for a reversal of the judgment is upon the failure of the clerk of the circuit court in entering the judgment of conviction to copy the verdict in the judgment at the time the same was entered. The judgment recites all of the proceedings had at the trial, and then comes this sentence: “Argument of counsel concluded the jury retired to consider its verdict and, after deliberation, returned into open court the following verdict, viz.” Following this is a-blank .space. There is no verdict copied in the original judgment. This, however, does not appear in the. record as certified by the clerk. There was a verdict returned by the jury, for in his motion and grounds for new trial appellant mentions the verdict of the jury several different times and complains of it. It also appears from the certificate of the clerk that the record, including the warrant on which the verdict was entered, was withdrawn from his. office immediately after the return of the verdict, and that at the time the judgment was written up the clerk did not have the •verdict before him, and therefore could not copy it but intended to do so as soon as the record came back into the office. The matter passed for several days when the attorney for the Commonwealth entered a motion in writing to complete the record by entering the verdict at the proper place in the judgment. This motion the court sustained and the verdict was entered. The record was then complete. That was before the appeal. Even if it were not so the appellant is in no position to complain of the error for he did not set it out in his motion and grounds for new trial.

Complaint is made of the insufficiency of the warrant. We have read it carefully and find it to be very much more definite and certain than most warrants issued under like circumstances in similar cases, which have been upheld by this court.

Appellant also insists that the court admitted incompetent evidence, but this is based upon the conclusion of appellant that inasmuch as the warrant charged him with having intoxicating liquors in possession, evidence that he also sold some of the liquor which he had in possession, was incompetent and prejudicial. The facts are, as shown by the record, that appellant was running a dram shop in the back of a barber shop and that the witness with another man entered the place and one of them called for a drink of whiskey, whereupon the appellant set out a bottle of whiskey and two glasses, one of them being a dram glass and the other contained water to be used as a “chaser.” The purchaser of the drink took it and followed the dram with water. The witness did not taste the liquor but saw it and said it looked like “white mule,” meaning white liquor, and that it smelled like whiskey. Other patrons of the place came in and asked for whiskey. The foregoing evidence was> sufficient, if believed by the jury, to sustain the verdict. The prosecuting witness was asked how he came to go to that place and said that his friend invited him to go and said in substance, “I will show you how easy it is to buy a drink in this town,” and then the prosecuting- witness went back into the dram shop where the dram was being-served. This evidence of what was said to the prosecuting witness before he went into the dram shop was objected to by counsel for appellant; the objection was sustained and the evidence excluded. This evidence was incompetent and should not have been heard by the jury, but inasmuch as the court promptly sustained the motion of appellant to exclude the answer, it was not prejudicial.

Appellant asked for a continuance of the case in the circuit court and filed affidavit showing- that a certain witness was absent and what he would prove if present. By agreement the Commonwealth allowed this evidence to be read as the deposition of the absent witness. There was no error in this of which appellant can complain.

The whole record considered we are of opinion that appellant received a fair and impartial trial.

Judgment affirmed.  