196 Ky. 6 | Ky. Ct. App. | 1922
Opinion of trie Court by
Reversing.
The appellant, John F. Cartwright, was indicted for a violation of section 2554d-l, Ky. Stats., 1922 edition, which is an act of March 29, 1918. The offense of which the indictment accused him occurred, if at all, before the enactment of the general prohibition statute of 1922, which went into effect on March 22, 1922, and after the enactment of the prohibition act of 1920, which became effective July 1st, 1920. The indictment charged the commission of several different offenses, among which were unlawfully buying, bargaining, selling, loaning, having in possession, owning and operating an illicit “moonshine” .still, and aiding, abetting and assisting in such operation, and harboring a person in the operation of an illicit or “moonshine” still. As a matter of course, the indictment was properly subject to a demur
The overruling of the demurrer to the indictment, after the election was made and the other offenses charged in it h'ad been dismissed, was not error. Unlawfully having in possession .an illicit or “moonshine” still was made a public offense by the act of 1918; so far as it created a public offense out of an act of that kind, it Was not repealed by the act of 1920. The latter act did not by its terms necessarily supersede the act of 1918 so far as the act of 1918 made it unlawful to have an illicit or “moonshine” still in possession, and the offense for which appellant was indicted appears to have occurred before the effective date of the act of 1922.
It is, also, insisted that the court erred to the prejudice of his substantial rights in not sustaining the motion of appellant to direct a verdict of acquittal at the close of the evidence for the Commonwealth, and at the close of all the evidence, and failing to properly instruct the jury as to the entire law controlling the issues of the case.
(a) The evidence proved that the appellant was a merchant tinner in the city of Bowling Green, and carried in his stock, regularly, sheet copper, coiled copper pipe and containers of various kinds and sizes, oil cans and cans for cooking, and was assisted in the conduct of his business by a clerk and several workmen, who did for customers such work in the preparation of vessels and other.articles connected with the trade, as is usually performed by- persons in that line of business, and without specific directions in each case from the appellant, but acting by his general authority as being within the scope of their employment. The Commonwealth’s attorney introduced certain officers as witnesses, who testified without objection that, armed with a search warrant, they searched the house in which appellant conducted his business, and that when they entered the front entrance to the place that a young man escaped out of the back way, and they found there as a result of their search what they denominated a “moonshine” still. It was as the witness expressed it “boxed up.” The fbox contained a copper can, with a spout and screw'top similar to an ordinary oil can, and with it in the box was another copper can with a demountable top.' The top of the latter
(b) That the evidence tended to prove that the device or contrivance was in the possession of appellant
(c) The offense of which appellant was convicted was unlawfully having in his possession the articles constituting the alleged still. He deposed that he had no knowledge of their presence in his house or of their being in his possession, in the character, in which they were found, until he was arrested and charged with the offense. If his testimony was true, which was a question for the jury, the act for which he was convicted was committed by one or more of his servants, without his knowledge or authority. As heretofore stated a principal can be made penally responsible for an unlawful act, committed by his agent, but to effect such result, the agent must have either express or implied authority from the principal to do so, and if he does not have such authority, the principal is not responsible. The authorization may be proven by any competent evidence, circumstantial or otherwise. If the act committed by the agent was one within the scope of his employment, implied authority from the principal is proven in accordance with the rule, which was familiar, when one could obtain a license to sell liquors and he employed another to sell the liquors, and thereby made himself liable for any illegal sale, although made without his knowledge or express authority v Evidence,'that the act was committed by the agent in the business house of the principal and in the conduct of the principal’s business, is, held generally to make a prima facie case of implied authority. It is not necessary to prove express consent by the principal to the agent’s unlawful act. As' said in Knight v. Com., 194 Ky. 567, “An agency may be established by proof of the conduct of the principal and agent, the relation of each to the transaction involved, and the circumstances surrounding the transaction, all of which makes the ques
The judgment is therefore reversed and cause remanded for proceedings not inconsistent with this opinion.