Sizemore v. Com.

• Decision Date: 19 October 1910
• Citation: 131 S.W. 37,140 Ky. 338
• Parties: SIZEMORE v. COMMONWEALTH (four cases).
• Court: Kentucky Court of Appeals

131 S.W. 37

140 Ky. 338

SIZEMORE v. COMMONWEALTH (four cases).

Court of Appeals of Kentucky.

October 19, 1910

Appeal from Circuit Court, Lee County.

Hugh Sizemore was convicted under four indictments for selling intoxicating liquors in local option territory, and he appeals. Reversed, with directions.

Sutton & Hurst and F. A. Lyon, for appellant.

James Breathitt, Atty. Gen., and Theo. B. Blakey, Asst. Atty. Gen for the Commonwealth.

CARROLL J.

Judgments were rendered against the appellant, Sizemore, in four prosecutions by indictment instituted against him for selling spirituous, vinous, malt, and intoxicating liquors, and mixtures thereof, in local option territory. He asks a reversal of each of the judgments, because the court erred in admitting incompetent evidence, and in misinstructing the jury. The facts in each case are substantially alike, and the same instructions were given in each. We will therefore dispose of them together.

The prosecuting witness in each case testified that he had bought a beverage called "Malt Mead" from appellant and drank the same, but that it did not have any intoxicating effect upon him. Other witnesses for the commonwealth testified that they had drunk the beverage called "Malt Mead" and it did intoxicate them; but these witnesses with the exception of two, said that they did not obtain, directly or indirectly, the "Malt Mead" that intoxicated them from appellant, nor did they know whether the "Malt Mead" he was charged with selling to the persons mentioned in the indictments was the same quality or character of "Malt Mead" they purchased. Two witnesses testified that they had bought "Malt Mead" from the appellant that did intoxicate them, but did not say they bought it at or near the time the sales were made to the persons named in the indictments. There was no evidence that the "Malt Mead" drank by the persons who testified to its intoxicating effect was the same quality or character of "Malt Mead" sold by appellant, or that the "Malt Mead" drank by the several witnesses was made according to a prescribed formula, or that the "Malt Mead" sold by appellant was in fact beer; but there was evidence that it was a malt liquor or beverage.

Appellant admitted that he had a United States license to sell malt liquor, and introduced a number of witnesses who testified to the effect that they had purchased "Malt Mead" from him, but that it did not intoxicate them or have any intoxicating effect upon them.

With the evidence in this condition, the court instructed the jury that:

"No. 1. If you believe from the evidence beyond a reasonable doubt that the defendant, in Lee county, before the finding of this indictment, sold spiritous, vinous, malt, and intoxicating liquors to ___ [naming him], you will find him guilty, and fix his punishment by a fine in any sum not less than $60 nor more than $100, or by imprisonment in the county jail not less than 10 nor more than 40 days. You may fine alone, or imprison alone, or you may both fine and imprison, just as you think proper. If you find the defendant guilty, you may or not say in your verdict that unless the fine be paid or replevied that the defendant be put at hard labor one day for each $1 of the fine and costs, and one day for each day of the imprisonment if you inflict imprisonment; and, unless you so believe, you should find the defendant not guilty.

"No. 2. If the jury believe from the evidence beyond a reasonable doubt that at the time said sale was made to ___ [naming him], if it was made, that the defendant had in his possession a United States special tax stamp, commonly called a United States license, for carrying on the business of retail dealer in malt liquors, that the possession of such license is prima facie evidence of guilt."

In our opinion the evidence was not sufficient to justify the conviction of the accused, and instruction No. 2 was erroneous and prejudicial. As set forth with some care in Gourley v. Commonwealth, 140 Ky. 221, 131 S.W. 34, which was also a prosecution for selling "Malt Mead" in violation of law, the competency as well as the sufficiency of evidence in prosecutions under the liquor laws, it does not seem necessary that we should again repeat what was said in that opinion. But, under the rule there announced, and for the reasons there given, much of the evidence against the appellant was incompetent, and the whole of it not sufficient to authorize the submission of the case to the jury. In the admission of evidence on a retrial of these cases the court should be governed by the principles laid down in Gourley v. Commonwealth, supra.

Much of the difficulty and confusion growing out of the attempts to enforce the laws against the illegal sale of liquor results from a failure to observe the distinctions between sections 2557 and 2557a and 2557b Ky. St. (Russell's St. §§ 3635-3637) that have been so frequently pointed out by this court in the opinions elsewhere cited. It often happens that the indictment will be found under one section and a conviction be had for the penalty prescribed in another section, or that the indictment will describe the offense created by two sections. Therefore, in view of the number of prosecutions under these sections, we will endeavor to restate the rulings of this court in construing them in such manner that trial courts and commonwealth's attorneys may not be in doubt as to the section under which the indictment should be returned, and the punishment inflicted. Each of these sections creates and describes a separate and distinct offense, and imposes a different penalty, and, of course when the indictment is returned under one section, the evidence for the commonwealth must be sufficient to sustain a conviction under that section, and the penalty, if any imposed, must be that set out in the section violated. If the Legislature had, as it might well have done, embodied in one section, with one penalty, the offenses created by sections 2557 and 2557a, the execution of the law would be greatly simplified, and much of the confusion that now exists removed; but, as it has not seen proper to do this, we can only administer the law as we find it written. This will not be difficult to do if trial courts and officers charged with its enforcement will keep in mind that each of these sections covers a different state of case. Section 2557 of the Kentucky Statutes is awkwardly written, and it is apparent that there was inadvertently omitted from it, after the words "as the case may be" in the fourth line, the words "it shall be unlawful to sell, barter or loan such liquors." But in administering this section the omitted words have been under the settled rule of construction supplied by the court, and the statute has been treated as if they were in it. It reads in part: "After the entry of the certificate of the canvassing board as above provided for, in the order book of the county court, if the vote was given against the sale, barter, or loan of spirituous, vinous or malt liquors in the said county, city, town, district or precinct, as the case may be (it shall be unlawful to sell, barter or loan such liquors) to any person, except as hereinafter provided; and any person who shall sell, barter or loan, directly or indirectly, any such liquors, in said county, city, town, district or precinct, shall, upon conviction, be fined not less than sixty nor more than one hundred dollars, or be confined in the county jail for not less than ten nor more than forty days, or both so fined and imprisoned, in the discretion of the court or jury. ***" This section only forbids the sale, directly or indirectly, of spirituous, vinous, or malt liquors. It does not prohibit or punish the sale of "any beverage, liquid mixture or decoction of any kind which produces or causes intoxication." An indictment under it should charge the sale of spirituous, vinous, or malt liquors, and, this being so, the accused cannot be convicted, unless the evidence shows that he sold either directly or indirectly spirituous, vinous, or malt liquors or a mixture of either with any other beverage, and that the beverage sold was intoxicating or one that the law would presume was. It is not, however, material under what name the manufacturer or vendor sells these liquors, or either of them, or the mixture of either with any other beverage or by what name they are called or branded, if the evidence shows that the beverage is, in fact, one of these liquors or a mixture of either with any other beverage and is intoxicating or one that the law would presume was. It is what the liquor or beverage is, and not what it is called, that fixes its status. As the liquor or beverage the accused sold was a malt liquor or...