Young v. Commonwealth

194 Ky. 561 | Ky. Ct. App. | 1922

Opinion op the Court by

Judge Clay

Reversing.

This is an appeal by T. B. Yonng from a judgment convicting him of having intoxicating liquors in his possession for the purpose of sale and fixing his punishment at a fine of $-300.00 and 40 days in jail.

The only question we deem it necessary to consider is whether appellant was entitled to a peremptory instruction at the conclusion of the evidence for the Commonwealth.

The material facts developed by the evidence are as follows: On January 21,1922, two packages shipped from Glenn Mary, Tennessee, and consigned to Sam Taylor at Nicholasville, Kentucky, arrived at their destination and were placed in the warehouse of the express company. Soon after their arrival, the sheriff of Jessamine county and his deputy, claiming that they had received information that intoxicating liquors were being shipped to Nicholasville, went to the express office and examined the packages with the permission of the negro porter. The sheriff then left and obtained a warrant for Sam Taylor, the consignee. After procuring the warrant, the sheriff and his deputy waited near the express office ■until they saw appellant and the agent of the express company enter the office and pull down the blind. While in the office, appellant paid the express agent the charges on the packages. The express company kept a book in which it was customary for consignees to receipt for freight, but on the occasion in question the agent told appellant that he was in a hurry, that the book had not been made out, but that he would make the entry and .sign it off for him. To this remark appellant made no response. Appellant and the express agent then left the express office for the purpose of going to the warehouse to get the packages. Upon entering the room, the agent walked a distance of about thirty feet and turned on the light. Appellant and the agent were about fifteen feet distant from the packages. At that moment the officers appeared. According to their testimony they asked the agent if he had delivered the packages and he replied that he had. According to the agent’s testimony, they asked if he was satisfied with the charges and he said, “Yes.” The officers then arrested appellant, took the packages to the sheriff’s office where they were 'opened and found to contain moonshine whiskey. At the time the officers appeared the packages had not been identified or pointed out by the agent, nor had appellant taken hold of them or started towards them for that purpose.

The statute makes it unlawful to “keep for sale” spirituous, vinous, malt or intoxicating liquors except for sacramental, medicinal, scientific or mechanical purposes in the Commonwealth of Kentucky. Section 2554a-1, Kentucky Statutes. To “keep” is to have in possession. Balfe v. People (Colo.) 179 Pac. 137. The possession may be by the accused in person or through an agent. Hoskins v. Commonwealth, 171 Ky. 204, 188 S. W. 348. The question is, did appellant acquire possession? Cases involving the time of the passing of title to personal property are not controlling, because possession does not always follow the title. Clearly, one must get before he can keep or have in his possession. When the liquor was delivered to the carrier, it acquired possession and its possession continued until surrendered. There were other packáges in the warehouse. Appellant -did not acquire possession by paying the charges and entering the warehouse with the agent for the purpose of identifying and receiving the packages in question. Doubtless if the officers had waited a few seconds, the packages would have been turned over to appellant, but before this could be done, and even before the agent himself had time to identify the packages, or point them out, or indicate that they were at appellant’s disposal, the officers arrested appellant and themselves took possession of the packages. In view of these circumstances, it seems clear to us that the packages passed from the possession of the express company into the possession of the officers, and therefore were never kept by appellant within the meaning of the statute. Combs v. Commonwealth, 162 Ky. 86, 172 S. W. 101, does not announce a contrary rule. In that case the defendant receipted for the whiskey and directed the express agent, who was also a drayman, to take the whiskey to his brother’s place of business. It was held that the expressman became defendant’s agent, so that for the purpose of a prosecution for having possession of whiskey for sale in local option territory the whiskey came into defendant’s possession.

The motion for a peremptory instruction should have been sustained.

This conclusion renders it unnecessary to determine whether the evidence presented by the Commonwealth was 'obtained by an unreasonable search and seizure.

Judgment reversed and cause remanded for a new trial consistent with this opinion.