197 Ky. 571 | Ky. Ct. App. | 1923
Opinion of ti-ie Court by
Affirming.
Appellant, who was convicted of the unlawful possession of intoxicating liquor, seeks a reversal of the judgment.
The facts are these: After appellant had been arrested for drunkenness, there was found on his person a half-pint bottle containing moonshine whiskey. Appellant claimed that he was suffering from a toothache, and bought the whiskey to relieve the pain. He admitted, however, that the liquor flew to his head and made him drunk.
The case was tried in the circuit court on appeal, and it is insisted that that court was without authority to amend the warrant. This contention is without merit, for it has long been the settled rule that as the trial .on appeal is de novo, the circuit court has the same power as the inferior court to amend the warrant. Pabst v. Commonwealth, 107 S. W. 728, 32 Ky. L. R. 1010; City of Louisville v. Wehmhoff, 116 Ky. 812, 76 S. W. 876, 79 S. W. 201; Mallon v. Commonwealth, 30 Ky. L. R. 328, 98 S. W. 315.
“That it shall be unlawful to manufacture,-sell, barter, give away, or keep for sale, or unlawfully have in' possession or transport spirituous, vinous, malt or intoxicating liquors except for sacramental, medicinal, scientific or mechanical purposes in the Commonwealth of Kentucky. ’ ’
Section 9, chapter 33, Acts 1922, is as follows :
“No person or persons, company or corporation, shall possess or have in possession any spirituous, vinous or malt liquors unless same have been lawfully acquired and are intended to be used lawfully; and in any suit, prosecution, proceeding or action, or motion concerning same, the burden of proving that same have been lawfully acquired and are intended to be used lawfully shall be upon the defendant or defendants.”
It will thus be seen that not only is the unlawful possession of intoxicating liquors a crime, but that one’s possession of intoxicating liquors is unlawful, “unless same have been lawfully acquired and are intended to be used lawfully.” Though the rule is different as to intoxicating liquor acquired before prohibition went into effect, it is apparent from .the statute, construed as a whole, that the only way in which intoxicating liquor may now be lawfully acquired is by the prescription of a licensed physician. It follows that the trial court did not err in giving the instructions complained of.
Judgment affirmed.