Dunnaway v. Commonwealth

Opinion op the Court by Judge Thomas Affirming. The appellant, Dunnaway, upon his trial on an indictment charging him with unlawfully selling spirituous, vinous and malt liquors, was convicted in the Harlan circuit court and on this appeal from the judgment his counsel insists upon two errors which he claims are sufficient to authorize its reversal, which are (l),'that the court erred in overruling defendant’s motion to quash the process upon the indictment and the return of the sheriff thereon, and (2), incompetent evidence introduced by the Commonwealth. Neither the process by which defendant was brought before the court, nor the return of the sheriff thereon, is copied in the record, but defendant filed his affidavit and that of another in which it is stated that when apprehended on the indictment he was in attendance on the Harlan circuit court as a subpoenaed witness in another prosecution pending therein and that under the provisions of section 666 of the Civil Code and others referred to therein, which he claims are applicable to an enforced attendance upon a criminal prosecution the same as in a civil case, he was exempt from the service of the process and because of which his motion to quash the sheriff’s return should have prevailed. It is unnecessary for us to determine the point raised, since no exception was taken to the order of the court overruling the motion, nor was that action of the court relied on in the motion for a new trial. The practice in this court is to treat the matter relied on as waived where no exception was taken to the alleged erroneous action of the court complained of; nor can it be reviewed on appeal to this court unless presented to the trial court in the motion for a new trial. Utterback v. Commonwealth, 190 Ky. 138; Webb v. Webb, idem 574; Delk v. Commonwealth, 166 Ky. 39; Commonwealth v. L. & N. R. R. Co., 175 Ky. 250; Civil Code, section 334, [607] and notes thereto, and Criminal Code, section 282, and notes thereto. • Under that rule as consistently followed by this court, this objection to the' judgment is unavailable here, even if it should be held that is was meritorious, but which, for the reasons stated, is left undetermined. The incompetent evidence relied on in ground (2), urged for a reversal, consists in a statement made by the prosecuting witness that when he purchased the whiskey his companion, who was with him at the time, also purchased a pint of whiskey from defendant. The two sales occurred at the same time, according to the testimony of the witness, and they were so closely connected as to be difficult of separation, and while the sale to the companion of the witness was irrelevant and, therefore, incompetent we fail to see wherein it prejudiced the substantial rights of the defendant. But, without discussing or disposing of the question upon its merits, it is sufficient to say that no exceptions or objections were made to the introduction of that testimony, and under the rule as announced by the cases, supra, and many others from this court which might be cited, the error, if any, must be treated as waived. The evidence was abundantly sufficient to sustain the verdict, and we find no fault in the instructions. There being no error, of which we can take cognizance, prejudicial to the substantial rights of the defendant, the judgment is affirmed.