140 Ky. 556 | Ky. Ct. App. | 1910
Opinion of the Court by
Reversing.
Under an indictment for selling spirituous, liquor in local option territory, the appellant was, by verdict of a jury, found guilty, and his punishment fixed at a fine of $60.00. A nevr trial was refused him, and he asks a reversal of the judgment of conviction on the grounds: First, that the trial court did not properly instruct the jury; second,- that a peremptory instruction directing his acquittal should have been given.
But one witness, Jas. A. Vernon, was introduced by the Commonwealth, and his testimony did not differ from that, of appellant who testified in his own behalf. The facts as furnished by their testimony were, in substance, that they mét at the residence of Mint Bailey on Wooten’s creek, in Leslie county-;, that after a short stay at Bailey’Sj, appellant remarked, to YernorL that he "was
We do hot think the foregoing undisputed facts furnished any evidence that conduced to prove appellant guilty of the offense defined by sections 2557-2570 Kentucky States, and 'charged in the indictment.
As said in Roberson’s Criminal Law and Procedure, section 671:
“The question whether one who procures liquor for another is punishable as a seller will, of course, depend upon circumstances. If it appear that the defendant had no interest in the sale, and in good faith acted as the agent and for the accommodation of the real purchaser in procuring the whiskey, he is not a seller. On the other hand,'if one ostensibly procures liquor for another, but makes the transaction merely a subterfuge to cover an illegal sale of liquor by himself, he is guilty of selling. And one who receives money and delivers liquor therefor, will be treated as the seller where no other person fills that character in the transaction put' in evidence.”
The above statement of the law rests.upon and is in accord with the views of this court as expressed in Leek v. Commonwealth, 23 R. 932; Ball v. Commonwealth, 91 S. W. 1123, and other cases. We think it manifest from
In view of the failure of the Commonwealth to make' out its case, the trial court should have granted the peremptory instruction asked by appellant, for in the absence of any evidence conducing to prove the defendant’s guilt, that court may, and should, as in a civil case, so instruct the jury. Commonwealth v. Murphy, 109 S. W. 353.
For the reasons given, the judgment is reversed and case remanded for a new trial and such further proceedings as will conform to the opinion.