171 Ky. 204 | Ky. Ct. App. | 1916
Opinion op the Court by
Reversing.
From a judgment of the Perry Circuit Court, imposing upon him a fine of one hundred dollars, for a violation of Section 2557b, Subsection 2, Ky. Statutes, the appellant, J. S. Hoskins, has appealed to- this court. The ¡indictment upon which he was convicted accuses him of unlawfully having in his possession spirituous, vinous ; and malt liquors and mixtures thereof for the purpose of selling them in territory wherein the local option law.
The evidence offered upon the trial was, in substance, as follows:
L. D. Smith, offered as a witness by the Commonwealth’s Attorney, stated that he was the agent of the Louisville & Nashville Railroad Company at Krypton, a station upon that road in Perry county; that on July 26, 1915, as such agent, he delivered to the appellant two barrels of stuff, which was billed “Beer,” and on July 29, 1915, he delivered to him four barrels of the same. These six barrels had been shipped upon the railroad to appellant by the Jung Brewing Company, of Lexington, Ky., and that according to his best recollection, the appellant was there at Krypton on the dates above mentioned, and in person received and receipted for the six barrels, which were designated upon the bills as containing beer; that he was informed that appellant was, at the time, a merchant and engaged in the business of a merchant at Plyden, in Leslie comity.
The appellant, testifying for himself, stated that he only received four barrels, and that they contained a liquor called “White Ribbon Beer;” that he did not receive, at the station, nor receipt for these barrels in person, but that same was done for him by teamsters, who had authority from him to do so; that the barrels were brought to him unopened, at Hyclen, in Leslie county; that he sold the stuff at fifteen and twenty cents per bottle, containing a little less than a pint, at his place of business in Hyden; that he drank of the stuff and that it was in no wise intoxicating; that he had never at any time any intoxicating liquors in his possession, in Perry county, for the purpose of selling same. J. L. Dixon, a witness for appellant, stated that he had, at different times, drunk two or three bottles of the .White Ribbon Beer, which appellant sold, and that it was not intoxicating. The proof further showed that from Krypton to the Leslie county line was about one and a half miles.
(2) The court instructed the jury, in substanlce,, that if it believed beyond a reasonable doubt that appellant had in his possession, in Perry county, for sale “liquor decoctions and liquid mixtures, a beverage that will produce intoxication,” to find him guilty, and to fix his penalty at a fine in any sum not less than twenty nor more than one hundred dollars. The penalty provided by the instruction is the one prescribed for a violation of Section 2557a, for a sale, in local option territory, of a beverage, decoction or liquid mixture, which produces or causes intoxication, and not the penalty for having in possession spirituous, vinous or malt liquors for sale in local option territory, as provided for by Section 2557b, Subsection 2, and for the alleged violation of which statute the appellant was indicted and tried.
It will be observed that Section 2557 made it unlawful to sell, barter or loan, directly or indirectly, in a •place where the local option law is in force, spirituous, vinous or malt liquors, and fixed the punishment of any one, who is guilty of so doing, at a fine of not less than sixty nor more than one hundred dollars and imprisonment for not less than twenty nor more than forty days. Section 2557a makes it unlawful to sell, barter or loan, directly or indirectly, a beverage containing any alcohol, or any liquid mixture or decoction which produces or causes intoxication, in a territory where the local option law is in force, and fixes a penalty upon any one who may be guilty of so doing, at a fine, in any sum, not less than twenty nor more than one hundred dollars. By an
Section 2557b, Subsection 2, under which appellant was indicted, makes it unlawful to sell, lend, give, procure for or furnish to another, or to have in possession for the purpose of selling any spirituous, vinous or malt liquors in any territory where the local option law is in force, and fixes the penalty for the violation of the statute at a fine of not less than fifty ñor more than one hundred dollars, and imprisonment for not less than rten nor more than fifty days. Each of these statutes «describes and creates a distinct offense and inflicts a dif$®Tent penalty for its commission, from either of the others. No .other penalty can be lawfully inflicted for a violation of either of these statutes, except the one prescribed for its violation by the statute. The offense created by Section 2557b, Subsection 2, by having in possession liquors for the purpose of sale, in territory where the local option law prevails, is confined to having in possession for sale spirituous, vinous and malt liquors, and does not make it unlawful to have in possession for the purpose of sale a “beverage, decoction or liquid mix-' ture, which, will produce or cause intoxication,” unless the liquor had in possession, by whatever name called, is a spirituous, vinous or malt liquor, or a mixture of these liquors, or a mixture of one or more of these liquors with another beverage, and1 the liquor must be intoxicating or one which the law will presume to be intoxicating. The indictment in the instant case charged the possession of spirituous, vinous or malt liquors and mixtures thereof, and the guilt of appellant turned, in part, upon whether or not he had in his possession for the purpose of sale, in prohibited territory, spirituous, yinous or malt liquors or mixtures of them, but the instruction, complained of, permitted him to bé found guilty, if he had in his possession a decoction or liquid mixture or beverage, which produces intoxication, and the imposition of the penalty for selling a beverage, liquid mixture, or decoction, which will produce intoxication, in a prohibited territory, and other than the penalty prescribed by the statute for the violation of which he was indicted and tried. The instruction was erroneous
For the reasons indicated the judgment is reversed, and cause remanded for proceedings consistent with this opinion.