171 Ky. 194 | Ky. Ct. App. | 1916
Opinion op the Court by
Reversing.
This is an appeal hy R. N. Wathen from a judgment of the Knox Circuit Court, wherein he was convicted of the offense of unlawfully selling, bartering and loaning, directly and indirectly, spirituous, vinous and malt liquors, in a territory wherein the local option law was in force, and in violation of that law. 'The prosecution, which resulted in the judgment, was.based upon an information, which was filed in the Circuit Court by the Commonwealth’s Attorney for the district in which Knox county is situated. The information alleged, that on or about the 10th day of January, 1916, the appellant and W. G-. Abel unlawfully sold, bartered and loaned, directly and indirectly, in Knox county, spirituous, vinous and malt liquors to C. L. Harbin, contrary to and in violation of the local option law, which was then in full force and effect in Knox county. The appellant and Abel entered pleas of not guilty to the charge set forth in the information, and a trial by jury followed. At the conclusion of the evidence offered by the Commonwealth, the accused moved the court to peremptorily instruct the jury to find a verdict of not guilty. The motion was sustained as to Abel, as the evidence did not connect 'bim, in any way, with the transactions upon which the prosecution relied for a conviction. The motion as to appellant was overruled and an exception saved. At .the conclusion of all the evidence, the motion for a di.rect verdict in his favor was renewed, but was overruled .by the court, to which ruling the appellant excepted. -The jury returned a verdict, finding the appellant guilty of the offense charged in the information, and fixed the
The grounds upon which a reversal of the judgment are urged, are:
First: The court erred to appellant’s prejudice in overruling his motion for a direct verdict of not guilty at the conclusion of the evidence for the Commonwealth and at the conclusion of all the evidence.
Second: The instructions given the jury were erroneous and prejudicial.
It is conceded that Knox county is a “dry” territory, or a county wherein the local option law is in force, and that the city of Lebanon, in Marion county, is a “wet” territory, or a territory wherein the local option, law is not in force, and where the sale of spirituous, vinous and malt liquors, by a licensed dealer, is lawful. -
There were no contradictions in the evidence. The undisputed facts of the case appear to be as follows:
The appellant was a resident of Lebanon, Kentucky, where he was engaged in the business of a distiller, and, also, maintained the business of a wholesale and retail liquor dealer, for engaging in which business he was duly licensed under the laws of the state. One J. W. Smith was in the employment of the appellant, and was furnished by appellant with blanks, which persons who desired to purchase liquors from appellant, could make ah order upon appellant for them, and send them to him by mail addressed to him at his place of business in Lebanon, Ky. He was, also, furnished with envelopes, which were addressed to appellant at Lebanon, Ky., and stamped with the necessary postage. In addition to the above, Smith was furnished with printed matter, which advertised the goods and business of appellant. Smith’s duties were to go through the country and to solicit persons to purchase the goods of appellant, and to deliver to them the blank order forms and envelopes and to distribute the printed matter containing the advertisements, but he made no sales nor. received any money in payment of goods, at least from persons who resided in local option territory. For Smith’s services he received a regular salary. Smith went' to Artemus, in Knox county, and there distributed the blank order forms, envelopes and the advertising matter to a num
Proof was made that, three other persons, who resided at Artemus, had procured liquors from appellant in the same way that Harbin did. The appellant objected to the testimony offered in regard to the purchases, by these three persons, but his objection 'was overruled, to which rulings of the court he saved exceptions. It is unnecessary, however, for the purposes'of the decision of this appeal to pass upon the question as to whether the admission of proof of the three sales to persons, other than Harbin, was error, as the purchases of the whiskey by them were made in the same way and manner as the purchase by Harbin, except probably one or more of them sent to appellant a postoffice money order, instead of his check, in payment for his purchase.
The question for decision upon the facts of this case, about which there was no dispute, is a question of law, purely, and is, whether the- sale was made, either directly or indirectly, by appellant, in Knox county, where the sale of spirituous liquors is prohibited by the local option law, or was it made in Lebanon, where the local option law does not prevail, and where, therefore, the
Hence, there being no evidence which conduced to show that the sale of the liquor to Harbin was made either directly or indirectly in Knox county, the court was in error in overruling the motions of appellant to direct a verdict in his favor at the close of the evidence for the Commonwealth, as well as at the close of all the evidence.
Having arrived at the aoove conclusion, it is unnecessary to consider the instructions given to the jury, but suffice it to say, they were erroneous, in that they were not in conformity to the principles of this opinion.
The judgment is reversed, and cause remanded for proceedings consistent with this opinion.