Partin v. Commonwealth

• Decision Date: 06 October 1910
• Citation: 140 Ky. 146
• Parties: Partin v. Commonwealth.
• Court: Kentucky Court of Appeals

140 Ky. 146

Partin v. Commonwealth.

Court of Appeals of Kentucky.

Decided October 6, 1910.

Appeal from Whitley Circuit Court.

L. L. PEACE and J. E. STEPHENS for appellant.

JAMES BREATHITT, Attorney General, TOM B. McGREGOR, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE NUNN — Reversing.

Appellant was tried and convicted in the Whitley Circuit court, under an indictment which, omitting the formal parts, is as follows:

"The grand jury of Whitley county, in the name and by the authority of the Commonwealth of Kentucky, accuse Wesley Partin of the offense of unlawfully selling, lending, giving, procuring for and furnishing to another spirituous, vinous and malt liquors, committed in a territory in which the local option law was then and there in force: committed in manner and form as follows, viz: The said Wesley Partin on the 19th of March, 1910, and within twelve months before the finding of this indictment and in the county and state aforesaid, did unlawfully and wilfully sell, lend, give, procure for and furnish spirituous, vinous and malt liquors to John Adkins contrary to and in violation of the provisions of an act of the General Assembly of Kentucky, whereby the sense of the people of any county, town, district or precinct shall be taken as to whether spirituous, vinous, or malt liquors shall be sold, bartered or loaned therein, known as the local option law, which said local option law was then and there, in said county and state, in full force and effect, against the peace and dignity of the Commonwealth of Kentucky."

There was no contradiction in the testimony. It shows that the prosecuting witness, John Adkins, met appellant upon a street in Jellico and asked him if he could get him some whiskey. Appellant answered that he did not know, but that he believed that one Alvis Sharp, a keeper of a blind tiger, had some to sell. Adkins asked him if he could work a trick and get him some, and he said he would try. Adkins gave him fifty cents with which to get it. Appellant went to Sharp and procured it and give it to Adkins. Appellant was not the agent of Sharp nor did he sell the whiskey to Adkins, nor did he receive one cent from the transaction in any way; he acted only for the accommodation of Adkins. Upon this evidence the court gave the following instruction:

"Gentlemen of the jury, if you believe from the evidence beyond a reasonable doubt that the defendant, Wesley Partin, in this county and within twelve months before the finding of the indictment in this case, sold, procured for or furnished to the witness John Adkins, spirituous, vinous or malt liquors, you will find the defendant guilty as charged in the indictment and fix his punishment at a fine of not less than $60.00 nor more than $100.00, or at imprisonment in the county jail not less than ten nor more than forty days, or both, in your discretion."

The jury convicted appellant and fixed his punishment at a fine of $60.00 and ten days in the county jail. The instruction of the court was, in effect, a peremptory. The jury could not return a verdict of not guilty because the evidence was without contradiction that appellant procured and furnished to the witness Adkins the liquor within the limits of Jellico, a city where the general local option law prevailed.

The indictment was irregular and erroneous. It covered and included offenses prescribed in two separate sections of the statutes; and the instruction was erroneous for the same reason. Section 2557 provides that any person who shall sell, barter or loan, directly or indirectly, any liquors in a town or district where the local option law prevails, shall be punished by a fine...