Sizemore v. Com.
| Decision Date | 26 February 1924 |
| Citation | 259 S.W. 337,202 Ky. 273 |
| Parties | SIZEMORE v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Leslie County.
John S Sizemore was convicted of having spirituous liquor in his possession, and appeals. Reversed and remanded.
J. M Muncy, of Hyden, for appellant.
Frank E. Daugherty, Atty. Gen., and Moorman Ditto, Asst. Atty Gen., for the Commonwealth.
John S Sizemore was convicted of having spirituous liquor in his possession. On this appeal he insists that the court erred in refusing a peremptory instruction in his favor, and in the instructions given.
It appears that defendant and William Couch went into a coal bank belonging to the latter to procure some coal. The prosecuting witness, John (Cold Foot) Sizemore, stated that he saw them come out, and that as they did so he saw defendant pick up a bottle of liquor that was lying on the bank at the mouth of the entrance, and take a drink, and set the bottle down again. Defendant admitted doing this, but said that he did not own or have anything to do with the liquor or know that it was at the place indicated and saw it for the first time as he came out of the bank; that after taking a drink he set it back where he found it and had nothing further to do with it.
William Couch testified that while he and defendant were in the coal bank the prosecuting witness came up; he did not see defendant pick up the liquor, but says the prosecuting witness carried it away and that was the only time he saw it.
As affecting the credibility of the prosecuting witness proper foundation was laid and in contradiction of him Stella Couch stated that while defendant and Couch were at the coal bank she heard the prosecuting witness say that he had some liquor and was going by and give old man Couch a drink or dram.
Bige Couch testified that at the preceding term of court he heard the prosecuting witness say that if the wife of John S. Sizemore indicted him for liquor he would come and indict John S. Sizemore.
A peremptory instruction was refused, and the usual instructions in cases of this character were given.
"To take a drink of intoxicating liquor is not of itself a violation of law." French v. Com., 198 Ky. 512 249 S.W. 761. Nor does the manual act of handling a bottle while so taking a drink, of itself constitute the unlawful possession denounced by statute, where the one so doing does not claim ownership...
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