Mitchell v. Com.

• Decision Date: 17 May 1899
• Citation: 106 Ky. 602,51 S.W. 17
• Parties: MITCHELL v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

51 S.W. 17

106 Ky. 602

MITCHELL v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

May 17, 1899

Appeal from circuit court, Laurel county.

"To be officially reported."

Henry Mitchell was convicted of the offense of selling intoxicating liquors in violation of a special statute, and he appeals. Affirmed.

Ewell &amp Smith and A. L. Reed, for appellant.

W. S Taylor and M. H. Thatcher, for the Commonwealth.

DU RELLE, J.

Appellant was convicted of the offense of selling intoxicating liquors in violation of a special act applicable to Laurel and four other counties. The sole proof was of a phial of Jamaica ginger, White's brand. It is claimed that this was a variance. It was not a variance, if Jamaica ginger was a spirituous liquor. The jury found that it was. But the objection is urged that there was no evidence to support this finding, as both the vendor and vendee swore it was not intoxicating. Evidence of a druggist was introduced that the regulation requirement of Jamaica ginger was 90 per cent alcohol and 4 per cent. ginger. If the jury believed this testimony, and believed that the phial contained Jamaica ginger (and it was bought and sold as such), they were authorized to conclude that it was intoxicating. Moreover, we think that, without the druggist's evidence, it is a matter of common knowledge that Jamaica ginger is an intoxicant and a spirituous liquor, and it is hardly more necessary to introduce testimony of that fact than it would be of whisky.

The verdict of the jury was as follows: "Wee the joury agree and find the defendant guilty as charged in the indite and sess his find at $100 dollars Isaa Clouse." It is objected that this is no verdict. But we think it expresses--though only phonetically--the intention of the jury so that no one could be mistaken in regard to it.

The remaining objections to the procedure, with one exception have been passed upon in Thompson v. Com. (Ky.) 45 S.W. 1039, 46 S.W. 492, 698, adversely to appellant's contention.

The final objection is that the caption of the indictment is headed "Liquor Circuit Court," and that, as this court judicially knows there is no such court, there was legally no indictment. Anciently, at common law, it was the custom to write the name of the county on the margin, either with or without the addition of the word "scilicet." The omission of this, however, was not fatal, when the caption or the body of the indictment...