Kennedy v. Commonwealth

• Decision Date: 21 April 1922
• Citation: 239 S.W. 796,194 Ky. 502
• Parties: KENNEDY ET AL. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

239 S.W. 796

194 Ky. 502

KENNEDY ET AL. v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 21, 1922

Appeal from Circuit Court, Boyd County.

Lew Kennedy and Marion Wigginton were jointly convicted of unlawfully selling and delivering intoxicating liquor, and they appeal. Judgment affirmed.

R. S Dinkle and E. P. Harris, both of Catlettsburg, for appellants.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

MOORMAN J.

Lew Kennedy and Marion Wigginton were jointly indicted and convicted in the Boyd circuit court for unlawfully selling and delivering intoxicating liquor to Claude Webb. Kennedy's punishment was fixed at a fine of $300 and 60 days in the county jail, and Wigginton was fined $50 and sentenced to 30 days in the county jail. Appealing from that judgment, they contend that the court erred in overruling their joint motion for a peremptory instruction made at the conclusion of the commonwealth's evidence, and also that the verdict was reached as the result of passion and prejudice, and is contrary to the law and evidence.

Kennedy was the owner of a soft drink stand at Catlettsburg, and Wigginton was employed by him as a bartender. The proof for the commonwealth shows that in the latter part of August or the first of September, 1921, Claude Webb entered Kennedy's place of business and demanded of Wigginton, who was standing behind the counter, some whisky. In response to the demand appellants delivered to Webb a half pint of what they indicated, and what he believed to be whisky, for which he paid $1.50. While no test of the liquid was made, the evidence for the commonwealth was sufficient to submit to the jury the question of whether it was or was not intoxicating liquor.

For appellants the proof shows that Webb entered Kennedy's place of business, that they were standing behind the counter, that Webb bought a bottle of pop, said he wanted a drink of water, and asked for a glass, and then went to the rear of the store. Appellants and two other witnesses testified to this defense. All of them said that Webb did not demand or purchase any whisky at that time.

The motion for a peremptory instruction was properly overruled. The evidence for the commonwealth tended to prove the commission of the offense charged. The testimony of appellants and of two other witnesses tended to disprove it. It is well settled in this jurisdiction that a directed...