Boggs v. Com.

• Court: Kentucky Court of Appeals
• Writing for the Court: CLAY, C.
• Citation: Boggs v. Com., 189 S.W. 21, 172 Ky. 243 (Ky. Ct. App. 1916)
• Decision Date: 16 November 1916
• Parties: BOGGS v. COMMONWEALTH.

189 S.W. 21

172 Ky. 243

BOGGS v. COMMONWEALTH.

Court of Appeals of Kentucky.

November 16, 1916

Appeal from Circuit Court, Johnson County.

High L Boggs was convicted of selling intoxicating liquor in violation of the local option law, and appeals. Reversed and remanded.

John W Wheeler, of Paintsville, for appellant.

M. M Logan, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

CLAY C.

High L Boggs was convicted of the offense of selling intoxicating liquor in violation of the local option law, and his punishment fixed at a fine of $60. He appeals.

The only question presented is whether or not the facts show a sale within the meaning of the statute. It appears from the evidence that the prosecuting witness, Ernest Jayne, entered into an arrangement with the appellant, Boggs, who is a licensed distiller, by which Jayne was to deliver to Boggs a quantity of apples out of which Boggs was to make brandy. Boggs was to keep one half of the brandy for his services in distilling the apples, and deliver to Jayne the other half of the brandy. Each party was to pay the internal revenue license on his half of the brandy. It further appears that in carrying out this arrangement the apples which Jayne delivered to Boggs were put in separate tubs and were separately distilled, and at no time were they mixed with apples belonging to Boggs or to other persons. On the contrary, the brandy that was actually divided between the parties was the product of the apples furnished by Jayne. In carrying out this agreement Jayne received between 19 and 20 gallons of brandy, and paid to Boggs, who was responsible therefor, his part of the internal revenue license. Jayne was neither a wholesale dealer nor a licensed retail dealer.

In addition to other instructions, the court instructed the jury as follows:

"An arrangement or agreement between the prosecuting witness, Jayne, and the defendant, Boggs, by which Jayne delivered to defendant an amount or quantity of apples which were distilled into brandy, and one-half of said brandy being delivered to Jayne by the defendant in consideration of said apples, constitutes a sale of liquor."

It is well settled that the transfer of liquor to another, in consideration of any article of value or of services to be performed by the transferee, constitutes a sale within the meaning of the statute. Therefore, if this were a case where Jayne merely exchanged his apples for brandy belonging to Boggs, there can be no doubt that the transaction would have been a sale, and that Boggs would...