Leak v. Commonwealth, Laurel, 1901

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LEAK v. COMMONWEALTH

COURT OF APPEALS OF KENTUCKY

64 S.W. 521; 1901 Ky. LEXIS 443; 23 Ky. L. Rptr. 932

October 3, 1901, Decided

PRIOR HISTORY:  [**1]

Appeal from circuit court, Laurel county.

Thomas Leak was convicted of the offense of selling liquor, and he appeals.

DISPOSITION: Reversed.

COUNSEL: E. L. Ewell, for appellant.

Robt. J. Breckinridge, for the Commonwealth.

JUDGES: BURNAM, J.

OPINION BY: BURNAM

OPINION

 [*521]  BURNAM, J. Appellant was indicted for selling less than 20 gallons of liquor in Laurel county in violation of the act of the general assembly prohibiting the sale of intoxicants in less quantities than 20 gallons, approved on the 4th day of April, 1884. To support the charge the commonwealth proved by Henry Stewart that appellant asked him if he wanted to unite with him and order a quart of whisky from Crab Orchard, saying that he needed some for his sick wife; that he did so, and gave appellant a share of the money; that appellant put in his share and ordered the whisky from J. W. James; that the whisky came in the evening, and was divided between them, each party taking his share thereof. Appellant, who testified in his own behalf, admitted the facts as proven by the witness Stewart, and testified further that the whisky came by express the same evening, and was divided between them. He testified that he had no interest in the whisky; did not sell it, but simply united with  [**2] the witness for the commonwealth in making the order. Thereupon the court instructed the jury to find the defendant guilty, and this appeal is from the judgment rendered upon the verdict so directed.

The trial court erred in giving the peremptory instruction complained of. The question of defendant's guilt or innocence was one of fact, which ought to have been left, under proper instructions, to be determined by the jury. If the defendant had no interest in the liquor or sale thereof, either as principal or agent of the seller, he was not guilty. If, on the other hand, he had any pecuniary interest in the sale of the whisky, or acted as agent for the vendor without such pecuniary interest, he was guilty. The judgment is therefore reversed, and the cause remanded for a new trial consistent with this opinion.