Gourley v. Com.

• Decision Date: 12 October 1910
• Parties: GOURLEY v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

131 S.W. 34

140 Ky. 221

GOURLEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 12, 1910

Appeal from Circuit Court, Lee County.

Clay Gourley was convicted of selling intoxicating liquor in violation of law, and he appeals. Reversed, and new trial directed.

Sutton & Hurst, for appellant.

James Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

The appellant, under an indictment charging him with the offense of selling and furnishing spirituous, vinous, intoxicating or malt liquors to W. G. Pryse in violation of the local option law was found guilty by the jury, and sentenced by the court to pay the fine imposed. He asks a reversal of the judgment because the court erred in admitting incompetent evidence, and in failing to instruct the jury to acquit him. This last ground is based upon the theory that, if the incompetent evidence had been excluded, there was not sufficient evidence to authorize the submission of the case to the jury.

Pryse testified, in substance, that he bought from the appellant and paid for, a liquor called "Malt Mead," but that it did not intoxicate him, nor have any intoxicating effect upon him. The commonwealth then introduced W. B. Steele and other witnesses, who, over the objection of the appellant were permitted to testify that they had drunk a beverage called "Malt Mead," which intoxicated them, but they did not obtain any of it from appellant, nor did they know what kind of a drink he sold to the prosecuting witness Pryse. As the only witness who testified that he purchased from the appellant "Malt Mead" said it did not have an intoxicating effect upon him, there was no evidence that the beverage called "Malt Mead" sold by the appellant was an intoxicating drink, nor was there any evidence that it was the malt liquor commonly known and called beer or ale, or that it was a spirituous or vinous liquor. Consequently there was no competent evidence to sustain a conviction, and the court should have directed the jury to find the appellant not guilty.

We have heretofore ruled that the trial courts and this court will take judicial notice that spirituous and vinous liquors, such as whisky, brandy, wine, rum, and gin, as well as the malt liquor commonly known as beer--whether it be common, lager or bock beer--is intoxicating, and, as the malt liquor known as ale contains a greater per cent. of alcohol than beer, it may properly be said that courts will judicially know it is also an intoxicating beverage. And so when it is proven that a person charged with a violation of the local option law has sold either spirituous or vinous liquor, or the malt liquor mentioned, by whatever name it may be designated or labeled, it is not necessary that the commonwealth should prove that either of these liquors is intoxicating. It will be sufficient to show a sale in violation of law. Mitchell v. Commonwealth, 106 Ky. 602, 51 S.W. 17, 21 Ky. Law Rep. 222; Pedigo v. Commonwealth, 70 S.W. 659, 24 Ky. Law Rep. 1029; Commonwealth v. Hurst, 62 S.W. 1024, 23 Ky. Law Rep. 365; Locke v. Commonwealth, 74 S.W. 654, 25 Ky. Law Rep. 76; Flanders v. Commonwealth, 140 Ky. 38, 130 S.W. 809. It is probable that "Malt Mead" comes within the general definition of a malt liquor, but, in the absence of evidence showing that it was intoxicating or that "Malt Mead" was a spurious name for one of the beers mentioned, it was not enough to show a sale of it, unless accompanied by evidence that it was an intoxicating liquor. Whatever the ingredients of this beverage or whatever the amount of alcohol it contains, and we have no knowledge or information on either of these points, it has not yet become so well known a drink in this jurisdiction at least as to have a reputation that will enable our courts to take judicial notice of its contents. It is likely that there are many intoxicating beverages that would be embraced by the general appellation of spirituous and vinous liquors besides those known as whisky, brandy, wine, rum, and gin, and that there are liquors known as malt liquors besides beer and ale, that the courts might take judicial knowledge of as intoxicating liquors, but, as it would not be pertinent to the matter in hand to express an opinion on this, we refrain from doing so. It is proper, however, to say that, while there is not much difficulty in determining that all spirituous and vinous liquors are intoxicating, there are many beverages that might appropriately be called malt liquors that are not intoxicating. It is therefore necessary when the evidence for the commonwealth does not show that the beverage sold was either spirituous or vinous liquor or the malt liquor commonly known as beer or ale that it should be proven that it was an intoxicating beverage or a beverages that would intoxicate. And we may here observe that the name whatever it may be given to the beverage by the manufacturer or person who sells it does not necessarily fix its status as a drink that may or may not be sold in local option territory. The legality of the sale will be determined by what the liquor or beverage actually is, and not by what it is called or branded. So much ingenuity in the selection of deceptive and misleading names is displayed by those who purpose and desire to evade the laws against the sale of liquor that the name given to a drink or beverage does not always signify that it is the character of drink that its name would indicate. Before the anti-liquor sentiment became so strong in this state, and at a time when there were few places in which it was necessary for liquor...