Com. v. Asbury

• Decision Date: 24 September 1898
• Parties: COMMONWEALTH v. ASBURY. [1]
• Court: Kentucky Court of Appeals

47 S.W. 217

104 Ky. 320

COMMONWEALTH v. ASBURY. ^[1]

Court of Appeals of Kentucky.

September 24, 1898

Appeal from circuit court, Metcalfe county.

"To be officially reported."

Sam Asbury was acquitted of the offense of retailing apple brandy without a license, and the commonwealth appeals. Reversed.

W. H W. Aarons and W. S. Taylor, for the Commonwealth.

BURNAM J.

The commonwealth prosecutes this appeal from a judgment of the Metcalfe circuit court acquitting appellee of the offense of retailing apple brandy without a license so to do. Appellee testified upon the trial that he sold a quart of apple brandy at his warehouse, which is situated on his premises, about 75 yards from the distillery where the brandy was manufactured that at the time he made the sale he had a license to sell brandy at his residence, which had been granted to him by the county court upon his application, for which he had paid a license fee of $25; that his residence was also situated upon the same tract of land; and that he believed, in good faith at the time he made the sale of the brandy in question, that he had the right to sell at his warehouse under his license. The county court clerk testified that the motion of appellee in the county court was for a brandy license to sell at his residence, and that the license was granted in conformity with his application. At the conclusion of the testimony the attorney for the commonwealth moved the court to instruct the jury as if no license had been granted appellee, which the court refused to do, and gave to the jury instructions which left it to them to determine whether the brandy was sold at a place other than the distillery, or place of manufacture. There was no question under the proof as to the place where the sale of the brandy was actually made, and whether appellee was authorized to sell at this place under his license was a question of law for the court, and not one of fact for the jury. Section 4224, Ky. St., provides that license may be granted to persons who are manufacturers of vinous liquors, in good faith, and distillers of peach and apple brandy, to retail liquor of their own manufacture at the place of manufacture, or the distillery, in quantities of not less than one quart, not to be drunk on the premises or adjacent thereto, on the payment of $25. Under this statute the county court was not authorized to designate the residence as the place for conducting...