90 Ky. 167 | Ky. Ct. App. | 1890
delivered the opinion of the court.
The act of the Legislature af March 14, 1888, provides : “It shall be unlawful for any person or persons to sell, barter, give, loan or traffic in spirituous, vinous or malt liquors, in any quantity whatever, within the county of Rowan. * * * This act shall not apply to the procuring or use of wine for sacramental purposes, or to a regular resident practicing physician, who, in good faith, prescribes the same as a medicine to his patient or patients. Nor shall this act or its provisions apply to those who give or furnish spirituous, vinous or malt liquors to a member or members of their own family, or their invited guest at their own household.'1'1
The appellant complains of a conviction under this law upon three grounds. It is urged, first, that the indictment is under a special statute, and is, therefore, defective in not specially pleading it. It is not,
Wharton says, in volume 1, section 366'of his work upon Criminal Law, in speaking of indictments under penal statutes: “It is not necessary, however, in such an indictment to indicate the particular section, or even the particular statute, upon which it is founded. It is only necessary to set out in the indictment such facts as bring the case within the provisions of some statute which was in force when the act was done, and also when the indictment was found.”
He next' contends that the statute is unconstitutional, in so far as it deprives a person of the right-to give liquor to another, because by doing so it denies-him the use of his property. If the sale may be forbidden, equally so may the gift of it. The law has the public welfare in view, and one may be as injurious to the public as the other. It has long been the recognized and unquestioned law of this State that one can not give liquor to a minor. The Legislature may, looking to the public health, or its peace or morals, and in the exercise of the police power, forbid not only the sale, but the gift, of any article calculated to injure these public interests. The citizen acquires his property subject to this right upon the part of the law-making power. The individual right is thus qualified to secure the protection of the public. It is upon this ground that the Supreme Court of the-United States hold, in Mugler v. Kansas, 123 U. S., 623, and other cases, that State legislation may constitutionally forbid the manufacture or sale of liquor for general use as a beverage within the State,,
This was all the evidence in the case. All of the drinking was done in the family room of the dwelling-house of the appellant, and when the parties were there by his invitation. The statute was not intended to embrace such a case. In fact, the exceptions in the statute embrace this case. The two parties to whom the liquor was given by the appellant should be regarded as the guests of his household. They were there by his invitation; they were, at the time, being entertained by him as his friends and guests,
The peremptory instruction asked by the appellant, directing the jury to find in his favor, should, therefore, have been given; and the judgment is reversed, with directions to award the appellant a new trial, and for further proceedings consistent with this opinion.