196 S.W.2d 725 | Ky. Ct. App. | 1946
Reversing.
Appellant was charged with violation of KRS
A trial resulted in a verdict of guilty; a fine of $50 and 30 days' imprisonment, and judgment was entered accordingly. Appellant moves for appeal and that the judgment be reversed, because (1) The indictment fails to charge a public offense; (2) The court erred in not sustaining appellant's motions made at the close of the evidence for a verdict in his favor, because of failure of proof and deficient indictment.
The chief of police of Manchester testified that he arrested Bray because he was drunk, and after his arrest searched him and found three-fourths of a pint of red whiskey. A fellow policeman testified likewise. Bray admitted that the policeman took from him nearly a pint of whiskey. He said that he had recently gone to Hamilton, Ohio, to get a job, but due to the strike situation *847 he failed and started home. He stopped in Lexington, Kentucky, and "feeling bad," he bought the whiskey from a licensed liquor store; he said he had no intention to sell it, and, as brought out on cross-examination, he bought it to drink, and drank most of it. This was all the evidence.
The assistant attorney general frankly concurs in appellant's contention that the judgment should be reversed, because of the faulty indictment and proof showed that the liquor was not possessed for the purpose of sale, barter or transportation, but for personal use after being lawfully acquired, and we concur.
The statute under which the indictment was drawn provides: "No person shall possess any alcoholic beverage unless it has been lawfully acquired and is intended to be used lawfully * * *." Subsection (1) reads: "No person in dry territory shall sell, barter, loan, give, procure for or furnish another, or keep or transport for sale, barter or loan, directly or indirectly, any alcoholic beverage." In Settles v. Commonwealth,
There was no evidence that Bray had a reputation for engaging in unlawful traffic; he was a soldier who had served more than five years in the Army, unsuccessful in obtaining work, "feeling bad," and, as he said, had acquired the whiskey from a licensed dealer near the bus station in Lexington; this for consumption, and not for traffic. There was no proof to the contrary, nor was there any circumstance indicative of any of the unlawful purposes set out in the law. He was entitled to a peremptory at the close of all the evidence. Roberts v. Commonwealth,
The judgment is reversed. *848