121 Ky. 226 | Ky. Ct. App. | 1905
Opinion by
Reversing.
This is a proceeding by information under sec. 1141, Ky. Stats. 1903, against the appellant, J. T. Doores, charging him with the offense of selling whisky by retail to Emmett Williams in Barren county, Ky., contrary to the local option law prevailing therein. Upon the trial of the case the jury found the defendant guilty, and fixed his punishment at imprisonment in the county jail for forty days and a fine of $100, and judgment was entered accordingly. As we see it, the main, and perhaps only, question for adjudication,, is whether or not the defendant was entitled to a peremptory instruction to the jury to find him not guilty after all the evidence for the Commonwealth was in.
The testimony in this case lies in a very small compass, and we therefore give it verbatim in all essential parts. Upon the main issue of the sale the Commonwealth introduced one witness only, Emmett Williams, who testified as follows: "I live in Glasgow. Saw Mr. J. T. Doores in my blacksmith shop over a year ago. He said, if I wanted anything in his line, he would like to sell it to me, or words to that effect. I said, 'all right.’ Didn’t buy anything from him then, nor did he offer to take any order then. I did buy some whisky from him about that time. I had not bought any before the conversation. I don’t know how long that conversation with him was before this sale; maybe six months or a year. I ordered a gallon of wliisky from him in April, 1905. I either called him up on phone or wrote to him at Bowling Green, Ky. He sent whisky from Bowling Green to me at Glasgow by Adams Express Com
Another witness, Joe Ellison, testified as follows: “I know Mr. Doores. Have known him five years. I am in the hotel business in Glasgow. He comes to Glasgow about every six weeks; maybe not so often. Has a little grip with him. He has been coming that often for the last year. I don’t know what he comes for. Never saw or heard him try to get orders for whisky in Glasgow. Don’t know what is in his grip. His business in Bowling Green is wholesale and retail whisky business.”
Brent Dickinson, the Adams Express Company’s agent at Glasgow, said: “I am agent for Adams Express Company at Glasgow. I know Mr. Doores. Since the first of the year I have seen him in Glasgow every month or six weeks. Don’t know what he is here for. Never saw or heard him solicit orders for whisky. For two years he has been shipping whisky through my office, from 1 to 5, and sometimes 50, packages a day; some one-half gallon jugs and some five gallon packages. For one-half gallon to five gallon jugs, there is a card on the packages, with the words, ‘J. T. Doores, Wholesale Liquor Dealer, Bowling Green, Ky.,’ on it. Have seen tin cups tied to jugs, with these words printed in the bottom. These packages of whisky are to parties in Barren, Metcalfe and Monroe, also Cumberland counties. ’ ’
This was all the evidence heard in the case. We
In the case of James v. Commonwealth, 102 Ky., 108, 19 Ky. Law Rep., 1045, 42 S. W., 1107, it appeared by the agreed statement of facts that James was a licensed distiller in Crab Orchard, Lincoln county, Ky., and as such authorized to sell whisky by retail in quantities of not less than a quart; that
To meet the foregoing principle the Legislature-enacted what is commonly called the “C. O. D. Law,” the pertinent part of which, so far as this case is concerned, is contained in subsec. 4, sec. 2557b, Ky. Stats. 1903: “All the shipments of spirituous,, vinous or malt liquors to be paid for on delivery,, commonly called ‘C. O. D. shipments,’ into any county, city, town, district or precinct where said act [the local option law] is in force, shall be unlawful and shall be deemed sales of such liquors at the place where the money is paid or the goods delivered; the carrier and his agent selling or delivering such goods shall be liable jointly with the vendor thereof. ’ ’
The principle announced in the case of James v. Commonwealth stands, except as it may be considered to have been repealed by this statute. Clearly the statute takes from within the principle of the case-only such shipments as are made by express C. O. D.; otherwise, the principle settled by the opinion remains intact.
The fact that the defendant had, six months or a
The case of Doores v. Commonwealth, 76 S. W., 2, 25 Ky. Law Rep., 459, does not control the question under consideration. The facts in that case were not the same as those in the case at bar. In the case cited the defendant made the arrangements for the sale in question, and' agreed on the amount to be sold and the price, in the local option district, and afterwards sent it to the buyer by an agreed agent, The court held that this was a sale in the local option county. Nor does the case of Teal v. Commonwealth, 57 S. W., 464, 22 Ky. Law Rep., 350, govern
We think the sale was made in Warren county, and therefore the motion for a peremptory instruction should have prevailed.