Commonwealth v. Bottom

• Decision Date: 10 October 1910
• Citation: 140 Ky. 212
• Parties: Commonwealth, For Use, et al. v. Bottom, et al.
• Court: Kentucky Court of Appeals

140 Ky. 212

Commonwealth, For Use, et al. v. Bottom, et al.

Court of Appeals of Kentucky.

Decided October 10, 1910.

Appeal from Mercer Circuit Court.

JAMES BREATHITT, Attorney General, TOM B. McGREGOR, Asst. Attorney General, and C. E. RANKIN, Commonwealth's Attorney, for appellant.

J. F. VANARSDALL and BEN LEE HARDIN for appellee.

OPINION OF THE COURT BY JUDGE HOBSON.

Local option is in force in Harrodsburg; it is not in force in Lawrenceburg, which is twenty miles from Harrodsburg and connected with it by rail. W. A. Bottom runs a saloon in Lawrenceburg and De Witt Bonta is his saloon keeper. On March 26, 1910, J. W. Devine at Harrodsburg wrote Bottom this letter:

                               "Harrodsburg, Ky., March 26, 1910
                

"W. A. Bottom, Lawrenceburg:

"Send me four quarts of whisky the first chance you have and leave it at John I. Vanarsdall's, and I will send you the money court day.

                                     "Respectfully
                                                  "J. W. DIVINE."
                

R. L. Goddard, at Harrodsburg, went to the telephone of John I. Vanarsdall, some days after and telephoned to Bottom asking him, if anybody was coming up, to send him some whisky. A number of other persons sent similar messages. Some days later Bonta took the train at Lawrenceburg, with the whisky that had been ordered by these parties put up in different packages. At Lawrenceburg he put his packages on a truck, and when the train came had them put on the train. When the train got to Harrodsburg the hotel porter or man sent by Vanarsdall to meet the train, took the packages to the hotel. Bonta delivered to Goddard the whisky he had ordered, and it was charged to Goddard on an account he had with Bottom. When he would see any of the other persons who had ordered whisky he collected from them the money, and they went to Vanarsdall's and got the whisky. Bottom and Bonta were indicted in these two cases for selling the whisky to Goddard and Devine in Harrodsburg; and on the conclusion of the evidence for the commonwealth, in each case, the court instructed the jury peremptorily to find for the defendants. The jury so found, and a judgment having been entered dismissing the prosecutions, the commonwealth appeals.

The judgment of the circuit court it is said, was rested on two grounds: First, that the sale was made at Lawrenceburg; second, that Bottom and Bonta could not be jointly indicted.

It is true that where whisky is ordered and directed to be delivered to a carrier and shipped to the consignee, the title passes on delivery to the carrier, for the shipper has no control...