196 Ky. 188 | Ky. Ct. App. | 1922
Opinton op .the Court by
Affirming.
Paul Smith was indicted for the offense of unlawfully selling intoxicating liquors. A trial resulted in a verdict of guilty by the jury, which, also, fixed his penalty at a fine of $200.00 and imprisonment for a period of thirty days in the county jail, and a judgment was rendered accordingly. A new trial was refused, and he has appealed from the judgment. He relies for reversal of the judgment upon a single ground, and that is, he insists, that the court erred to the prejudice of his substantial rights in overruling a motion made by him to direct a verdict in his favor, at the conclusion of the evidence for the Commonwealth and again at the close of all the evidence.
The indictment, as it must have, to have accused him of a public offense, charged, that he sold the intoxicating liquors to a named person for other than.a sacramental, medicinal, scientific or mechanical purpose. In other words the allegations of the indictment negatived the exceptions in the section of the statute which creates the offense of unlawfully selling intoxicating liquors. Section 2554a-l, Ky. Stats., 1922 edition. The ground upon which the appellant rests his contention that the court should have driected a verdict of not g-uilty,. and erred in
The Carters remained until John purchased and drank two more drams of whiskey, paying for them twenty-five'cents each. The appellant testified, denying that he sold the whiskey to Carter, or that he had any whiskey, and introduced other witnesses who gave testimony which corroborated his. 'The only issue was whether the* sales were made, and appellant denying making the sales, of course, did not undertake to rely for a defense upon the fact that he sold the whiskey for any sacramental, medicinal, scientific or mechanical purpose.
If it was necessary in order to have justified a conviction of the offense charged in the indictment that 'the Commonwealth should have offered evidence proving that the spirituous liquor, which was sold, was not sold for a sacramental, medicinal, scientific or mechanical purpose, the facts and circumstances developed by the evidence would have sufficiently carried the burden to that effect, as they very satisfactorily prove that 'Carter did not buy the liquor, nor was it sold to him for any other purpose than to drink it as a beverage.
It is true that to accuse one of the offense of unlawfully selling intoxicating liquors, as denounced by section 2554a-l, Ky. Stats., it is necessary in order to charge the defandant with a public offense to aver in the indictment that the purpose for which the sale was made did not come within one of the exceptional purposes stated in the statute, or in other words to negative the excep
By the terms of the prohibition act of 1920, as well as the act of 1922, which superseded the former, every person was and is forbidden under a drastic penalty to make a sale of intoxicating liquors for any purpose other than a sacramental, medicinal, scientific or mechanical purpose, and only certain classes of persons who have' qualified to do so, by having complied with certain regulations prescribed by the Federal authorities, and, in instances, by the state laws, are authorized to make a sale of intoxicating liquors for the purposes excepted from the general prohibition of the .statute, and in most instances a sale can not ¡be made for any of those excepted purposes, except to persons who have qualified themselves under governmental laws and regulations to become purchasers. It is at once apparent, that, if the burden rested upon the Commonwealth, in the instance of every sale, to prove that the liquor was not .sold for a •sacramental, medicinal, scientific or mechanical purpose, that the evidence would taire a very wide range and necessitate the bringing into court of the records and the officials of the state -and Federal governments, who have charge of qualifying persons to sell intoxicating liquors,
The judgment is therefore affirmed.