133 Ky. 94 | Ky. Ct. App. | 1909
Lead Opinion
Opinion op the Court by
Reversing.
• Appellants are registered distillers engaged in the manufacture of whisky in Marion county; their distillery being located outside of the limits of the city of Lebanon and not in local option territory. They were indicted at the June term, 1908, of the Marion Circuit Court in several cases, charged with the offense of retailing whisky in less quantities than five gallons without license to do so. Before any of the cases were called for trial, or any steps taken, appellants filed in the clerk’s office an affidavit and an amended affidavit, seeking to have the regular judge vacate the bench. The judge held the affidavits insufficient, and refused to vacate the bench, and proceeded to call the cases for trial, whereupon appellants waived a jury and submitted the law and facts in two test cases to the court. The waiver was made upon the express agreement between the parties with the consent and concurrence of the court that the waiver of the jury was in no wise to prejudice the rights of appellants, nor was such waiver to be considered as a waiver of the objections of appellants to the presiding judge sitting on the trial of the case or taking or exercising any jurisdiction in the case.
The main question to be determined on this appeal is whether the court erred in refusing to vacate the bench upon the filing of the affidavits of appellants, by which they sought to have him vacate the bench.
It is due to the presiding judge to say that, in rendering his opinion on the motion, he controverted the material parts of the affidavits; but it is also true that we cannot consider this in passing upon the question. The law prohibits this. We' must take the matters stated in the affidavit as true. This being so, we are of the opinion it was error for the court to refuse to vacate the bench. The accused has a right to be tried by a judge that is fair and impartial, and when he has good reasons to believe, supported by facts, that he will not afford him such trial, he
The' indictment in this case charged appellants, R. Ni Wathen, ITans Mueller, and Charles Kobert, Sr., of the offense of selling spirituous liquors by retail without license to do so, by a'sale of less than five gallons of whisky to one J. B. Thomas. The offense was alleged to have been committed in the month of January, 1908. It was shown by the proof, in substance, that appellants were distillers with their distillery located in Marion county outside of the city limits of Lebanon, and that a short time prior to the date on which the alleged offense was committed, one Mike Lee approached appellant R. N. Wathen and asked him if he could sell him some whisky. Wathen answered that he could not sell him less than a barrel. Lee then said that some of his neighbors were pretty dry, and that he would see them and see if he' could get up a club to take a barrel. Wathen said to him that he had' better consult a lawyer and see whether or not he could legally do that. He did so, and the lawyer told him that it would not be a violation of the law. Lee7s neighbors and friends gave him the money for the amount desired by each, and. when he had obtained enough to pay for the contents of the barrel he deposited it in a bank in Lebanon, and then went to the office of appellants, situated near the distillery, and there found the clerk of the company. He gave the clerk a check for the barrel of liquor, deducting $1, the
It is conceded by app'ellee’s counsel that if Lee had removed the barrel' when he paid for it from the premises of appellants, and then divided it, appellants would not be responsible;.but'they contend that the manner in which the transaction took place shows a sale to each and all the persons who had subscribed for the whisky, that it was not a sale in good faith by wholesale, but that it was a sale by retail, and the means adopted was a devise to make it appear that it was a wholesale transaction. Section 1304, Ky. St., provides: “Any person who shall, without license so to do, sell or- otherwise dispose of any spirituous, vinous or malt liquors shall, for each offense, be fined not less than twenty nor more than one hundred dollars.” If the sale of this barrel'of whisky to Lee was made in good faith by wholesale, and not with the intention by appellants or their agents of having any part in the distribution of the whisky among the subscribers for it, and the division was made without the knowledge or consent of ap
For these reasons the judgment of the lower court is' reversed and remanded for further proceedings consistent herewith.
Rehearing
ON REHEARING.
' While the circuit judge controverted the statements of the affidavit, he correctly ruled that for the purposes of the motion they should be taken as true; and, as shown by his opinion, he did take the statements of the affidavit as true in disposing of the motion. The statement of the opinion that he controverted the affidavit was only made to avoid putting the circuit judge in an unjust position on the facts.
The other matters set out in, the motion were all presented on the original oral argument, and any additional authorities -which counsel may desire considered may be shown in the petition for rehearing.
Motion overruled.