Commonwealth v. Branamon, Rockcastle, 1848

Commonwealth vs Branamon.

COURT OF APPEALS OF KENTUCKY

47 Ky. 374; 1848 Ky. LEXIS 79; 8 B. Mon. 374

June 6, 1848, Decided

PRIOR HISTORY:  [**1]  ERROR TO THE ROCKCASTLE CIRCUIT.

DISPOSITION: Reversed and remanded for a new trial.

COUNSEL: Cates, Attorney General, for Commonwealth; Letcher & Tilford for defendant. 

JUDGES: JUDGE SIMPSON. 

OPINION BY: SIMPSON 

OPINION

 [*374]  JUDGE SIMPSON delivered the opinion of the Court.

THIS is a presentment against the defendant for keeping a tippling house. On the trial the law and the facts having been by consent, submitted to the Judge, it was proved that one George Houke had obtained a license to keep a tavern, that the defendant, Branamon, agreed with Houke to pay for the license, and for so doing he was to have the right to sell spirituous liquors. Under this arrangement, the defendant occupied a room in the tavern house of Houke, and for some time sold spirituous liquors there by retail. He afterwards removed his liquors into an adjoining room, which he rented from a third person; which room was no part of the premises in the possession of Houke or under his control, and continued to sell there by retail. The Court below dismissed the presentment.

The facts proved constituted the defendant the keeper of a tippling house, unless the agreement between Houke and him, conferred upon him the legal right to [**2]  sell spirituous liquors by retail. This right is given to the keeper of a tavern as incident to his business, is inseparable from it, and not transferable to a third person. He may exercise it by his barkeeper or servant,  [*375]  but it must be under his control and superintendence, and form a part of the business of the house kept by him.

It does not appear in this instance, that the occupation of the defendant in selling liquors by retail, had any connection whatever with the business of Houke as a tavern keeper; it seems to have been a separate and distinct concern, managed exclusively by the defendant, in his own name, and for his own benefit, and not for the accommodation of Houke's guests, or in any manner under the control or direction of Houke. The license, therefore, to Houke to keep a tavern, cannot operate as an authority to the defendant, or shield him from the penalty to which he has subjected himself as the keeper of a tippling house.

Wherefore, the judgment is reversed and cause remanded for a new trial and further proceedings consistent with this opinion.