Logan v. Com.

• Decision Date: 18 October 1916
• Citation: 188 S.W. 678,171 Ky. 570
• Parties: LOGAN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

188 S.W. 678

171 Ky. 570

LOGAN v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 18, 1916

Appeal from Circuit Court, Whitley County.

William L. Logan was convicted of selling intoxicating liquor in local option territory, and he appeals. Affirmed.

Tye Siler & Gatliff, of Williamsburg, for appellant.

S. S Lawson and Joseph B. Snyder, both of Williamsburg, for the Commonwealth.

MILLER C.J.

The appellant, W. M. Logan, appeals from a judgment of the Whitley circuit court convicting him of selling whisky in that county, which was local option territory, and fixing his punishment at a fine of $100 and imprisonment in the county jail for 40 days.

The only ground seriously urged for a reversal is that the evidence was insufficient to sustain the verdict.

The transaction out of which this prosecution arose took place in Jellico, which is located on the state line between Kentucky and Tennessee. The proof shows that Luther Lay went to George Koch's place of business, which is on the Kentucky side of the line, and gave Koch a dollar, telling him that he (Lay) wanted some whisky. Koch then ordered the whisky over the telephone from the appellant Logan, whose place of business was on the Tennessee side of the line and only about 50 feet from Koch's place of business. The whisky was ordered sent by express to Lot, Ky. which is also in Whitley county and about 2 1/2 or 3 miles from Jellico. Lay then went to Lot, and there received from the express agent the whisky which had been ordered for him by Koch. The whisky was so marked as to show that it had been shipped by Logan. The proof further shows that Koch conducted a meat and grocery business, and that Logan was in the wholesale liquor business. Logan would not, however, make shipments of liquor to points in Tennessee; and, in order for Lay to get his liquor, it was considered necessary to make it an interstate shipment by having it shipped from Tennessee to a point in Kentucky. It is further shown that Lay had procured whisky from Logan in this manner, on other occasions.

While it does not clearly appear that Lay could have procured whisky from Logan by going in person to his place of business in Tennessee, one would be justified in concluding, from the testimony, that Lay could not have procured whisky in that way. The fact that he was only 50 feet from Logan's place of business, when he paid Koch the money and ordered the whisky to be delivered at Lot, was sufficient to justify the jury in believing that the transaction was a mere trick or device to evade the local option law.

Section 2570 of the Kentucky Statutes reads as follows:

"No trick, device, subterfuge or pretense shall be allowed to evade the operation or defeat the policy of the law against selling spirituous, vinous or malt liquors without license or in violation or evasion of any local option laws prevailing in any county, town, city, precinct, or municipality of this commonwealth."

The court instructed the jury, under this statute, that if they believed from the evidence beyond a reasonable doubt that Logan, in order to bring about the sale to Lay and others in Whitley county, entered into a scheme, arrangement, or device whereby he employed or allowed Koch to receive the money for him in Whitley county and call him up by telephone and direct the shipment of whisky to Lot, and that the arrangement was intended to evade the law, and that this arrangement was a trick or device on the part of Logan, whose place of business was near the Kentucky-Tennessee line, by which he was intending or attempting to evade the law against the sale of whisky in local option territory in Whitley county, they should find the defendant guilty.

Appellant's counsel...