Sowder v. Com.

• Decision Date: 06 December 1935
• Citation: 88 S.W.2d 274,261 Ky. 610
• Parties: SOWDER v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

88 S.W.2d 274

261 Ky. 610

SOWDER v. COMMONWEALTH.

Court of Appeals of Kentucky

December 6, 1935

Appeal from Circuit Court, Rockcastle County.

Logue Sowder was convicted of selling intoxicating liquor to an habitual drunkard, and he appeals.

Reversed and remanded for a new trial.

Williams & Denney, of Mt. Vernon, for appellant.

Bailey P. Wootton, Atty. Gen., and William A. Shumate Jr., Asst Atty. Gen., for the Commonwealth.

CLAY Chief Justice.

Logue Sowder has prayed an appeal from a judgment convicting him of selling intoxicating liquor to Ed Price, an habitual drunkard, and fixing his punishment at a fine of $100.

The evidence for the commonwealth is as follows: Price was a plumber, who bought one or two pints of liquor from Sowder. He was sober at the time, but other times Sowder had refused to sell him liquor. He had been drunk two or three times during the past year, but this drinking never incapacitated him for work. Over the objection of Sowder, S. F. Bowman answered "Yes" to the question, "Is the prosecuting witness, Ed Price, in the habit of getting drunk?" On cross-examination the witness Bowman stated that Price had worked in his office building several weeks that year and during that time he had never seen him under the influence of liquor. Jim Griffin testified that Price got drunk often, and he had seen him drunk several times. Judge C. C. Carter testified that he had had Price before him five or six times in the last year for being drunk, and that Price was in the habit of getting drunk. Jones Fish testified that Price got drunk often, and was in the habit of getting drunk. C. W. Phillips the jailer of Rockcastle county, testified that Price had been in jail four or five times in the last year for drunkenness. He employed Price for several days to work on the jail, and during that time he never appeared to be under the influence of liquor. On the other hand, Sowder testified that he sold the witness Ed Price two pints of liquor. Before he sold the liquor he required him to sign a certificate as required by law, stating that he was not addicted to liquor and had not been drunk in the last six months. Bill Clontz testified that he had been in Sowder's restaurant often and had seen him refuse to sell liquor to people who appeared to be drunk, including Ed Price. Cecil Shepard testified to the same effect.

When the court undertook to instruct the jury, the defendant asked that the instructions be put in writing. The court defined an "habitual drunkard" as follows: "An habitual drunkard is one who has the habit of indulging in intoxicating drinks so permanently fixed, that he becomes drunk whenever the temptation is presented. The custom or habit of getting drunk; the constant indulgence of stimulants, whereby intoxication is produced; not the ordinary use, but the habitual use of intoxicants; the habit should be action (actual) and confirmed." The court then added orally: "In other words, gentlemen of the jury, an habitual drunkard is one who is in the habit of getting drunk." The written definition is the one that is sometimes given, but it can hardly be said that the oral definition "An habitual drunkard is one who is in the habit of getting drunk," is altogether accurate. One might be in the habit of getting drunk once every two years or once every year, and yet he could hardly...