197 Ky. 270 | Ky. Ct. App. | 1923
Opinion op the Court by
Reversing.
This appeal is prosecuted from the Floyd circuit court in which the indictment charged the defendant with the offense of “unlawfully selling spirituous liquors,” The acts constituting the offense are thus set out in the descriptive part, viz.: “Did unlawfully sell -spirituous, vinous 'and malt liquors, not for mechanical, scientific, medicinal or sacramental purposes . . . being what is commonly known as lemon extract for beverage purposes the same containing more than one-half of one per cent alcohol.”
_ -Section 2554a of the Kentucky Statutes, upon which this indictment is predicated, has been before the court frequently, and a number of its provisions have been construed. Subsection 1 of the act denounces the -sale of spirituous, vinous, malt or intoxicating liquors, except for sacramental, medicinal, mechanical or scientific purposes.
Subsection 5 of the said act legalizes the sale of a number of articles included in paragraph's -a to j, when unfit for beverage use. Paragraph e, of this subsection includes “flavoring extracts and syrups that are unfit for use as a beverage, :or for intoxicating beverage purposes.”
It will be observed that the indictment would have been good as a charge of “unlawfully selling spirituous, vinous and malt liquors,” but for the concluding phrase-in the description, which adds, “being what is commonly called lemon extract for beverage purposes, the same containing more than one-half of one per centum of alcohol.”
This is an offense denounced by subsection 5. In the case of J. K. Walker v. Commonwealth, this day decided by the court, it was held that a valid indictment under subsection 5 should -charge that the sale was “knowingly” ma-de for beverage purposes or made under -circumstances from which the seller might reasonably deduce the intention of the purchaser to use them for such purpose. That in-dlietment was for selling Jamaicat ginger for beverage purposes and it was held defective' because it did not allege knowledge a-s above- indicated.
The sale of Jamaica ginger is authorized under paragraphs o and d, of subsection 5, and paragraphs a, b, -a and d are especially mentioned in the concluding paragraph naming the penalty, but after so -doing the statute^ continues, “ ... or any extract or syrup -for intoxicating beverage purposes,” and makes the same application as it does to the -lettered paragraphs. • Hence-this case cannot be distinguished in that particular from, the Walker case. >
The evidence introduced was as to the sale of four' bottles of lemon extract, and the instructions were confined to -such sale. For the reasons indicated the instructions were erroneous, also the indictment stated two offenses. Upon demurrer the Commonwealth might have elected, and if it had elected to have tried upon the charge of selling- spirituous liquor, there would be no evidence to support the verdict; and if its election had been to try
For the reasons indicated the judgment is reversed and remanded for proceedings consistent with this opinion.