Arnett v. Com.
| Decision Date | 06 December 1935 |
| Citation | 261 Ky. 607,88 S.W.2d 276 |
| Parties | ARNETT v. COMMONWEALTH (two cases). |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Morgan County.
Kelly Arnett was convicted of selling intoxicating liquors to two habitual drunkards, and he appeals.
Reversed and remanded for a new trial.
H. H Ramey, of Salyersville, for appellant.
Bailey P. Wootton, Atty. Gen., and Wm. A. Shumate, Jr., Asst. Atty Gen., for the Commonwealth.
The grand jury of Morgan county returned two indictments against Kelly Arnett for selling liquor to an habitual drunkard. The purchaser named in indictment No. 838 was Corbett Terrill and the purchaser named in indictment No. 839 was Walter Howard. Evidence was heard on the trial of indictment 839, and it was agreed that the evidence on the trial of indictment 838 would be the same. The accused was convicted in each case, and his punishment fixed at a fine of $100. The two cases are before us on motion for an appeal.
The facts and questions of law being the same in each case, the two cases will be considered in one opinion.
It is first insisted that all that the evidence showed was that Howard and Terrill occasionally became intoxicated, and there was no evidence tending to show that either was an habitual drunkard within the meaning of the law. It is true that Phil Donovan testified that he had known Howard for 14 or 15 years, and had seen him drunk only once or twice in the last year or two. It is also true that Custer Jones, cashier of the Morgan County National Bank, testified that he had known Howard ever since he was a baby, and had never seen him drunk. If this were all the evidence, there might be some merit in the contention. In addition to other evidence that Howard had been seen drunk several times in the past few months, he himself testified that he worked in taking up a railroad for about a month, and that during that time he and another man "were drunk about 8 or 10 times." It cannot be doubted that this evidence was sufficient to take each case to the jury and to sustain the verdict.
The court defined an habitual drunkard as "a person who is in the habit of getting drunk." In the recent case of Logue Sowder v. Commonwealth of Kentucky, 261 Ky 610, 88 S.W.2d 274, we held a similar definition to be incorrect. In discussing the question we said: ...
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Barnett v. Com.
...could not have been introduced in the prosecution against appellant. Steely v. Commonwealth, 132 Ky. 213, 116 S.W. 714; Arnett v. Commonwealth, 261 Ky. 607, 88 S.W.2d 276; State v. Wilson, 236 Iowa 429, 19 N.W.2d 232; 50 C.J.S. Judgments § 754, page 268. In Santa Fe Grain Co. v. Minneapolis......
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State v. Morello, 35782
...238 N.W. 816; Longsine v. State, supra, 105 Neb. 428, 181 N.W. 175; Sowder v. Commonwealth, 261 Ky. 610, 88 S.W.2d 274; Arnett v. Commonwealth, 261 Ky. 607, 88 S.W.2d 276; State v. Martino, 25 N.M. 47, 176 P. 815; Conn v. Commonwealth, 234 Ky. 153, 27 S.W.2d 702; State v. Justesen, 35 Utah ......
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Duncan v. Com.
...supra, and inserted an excerpt from that opinion. Also other cases are referred to in the Sowder opinion. The same holding was made in the Arnett case. It, therefore, that the question is thoroughly settled, at least in this jurisdiction, that the statute here alleged to have been violated ......
- Sowder v. Com.