Storms v. Com.

• Decision Date: 09 February 1899
• Citation: 49 S.W. 451,105 Ky. 619
• Parties: STORMS v. COMMONWEALTH. [1]
• Court: Kentucky Court of Appeals

49 S.W. 451

105 Ky. 619

STORMS v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

February 9, 1899

Appeal from circuit court, Garrard county.

"To be officially reported."

J. E Storms was convicted of the offense of selling liquor without a license, and he appeals. Reversed.

M. D Hughes and Wm. Herndon, for appellant.

W. S Taylor, for the Commonwealth.

HAZELRIGG C.J.

The indictment in this case charges that appellant "did unlawfully sell at retail spirituous and vinous liquors to W Y. West, without having obtained and procured a license therefor, and paid the tax thereon, as required by law"; and the agreed facts on which the case was tried by the court, and judgment rendered against appellant, are substantially as follows: That at the date of the sale charged in the indictment the defendant was a registered pharmacist and druggist, in good faith, in the town of Lancaster, a town of the fifth class, in Garrard county, and that for some years prior thereto he had continuously been such druggist, and that within one year next before the finding of the indictment he had procured from the Garrard county court a license to sell spirituous, vinous, and malt liquors, for which he had been required to pay nothing, except the clerk's fees for issuing same; that, on the day charged in the indictment, appellant, on the prescription of a regular, practicing physician, sold to West one pint of whisky, unmixed and untinctured with any drug or other thing, and whisky is recognized by the medical profession as a medicine; that theretofore, at an election held for that purpose, the legal voters of the district including the town had voted against the sale of liquors, and this fact had been duly certified for record, and recorded in the proper office.

At the outset it is proper to say that, in our opinion, the vote putting in force the local option law does not affect the question here involved. That law specifically exempts druggists from its operation, unless the petition for the vote and the notice and order of election shall include druggists. This was not done here, and the law does not apply, according to its language. It is to be noticed, however, that it does affect the quantity and manner in which druggists may sell.

The indictment was evidently drawn under the following provisions of the Kentucky Statutes: "Sec. 4224. Before engaging in any occupation, or selling any article named in this section and section 4225 of this article, the persons desiring to do so shall procure a license and pay the tax thereon, as follows: *** To persons who are druggists in good faith, to retail spirituous and vinous liquors at the drug-store in quantities not less than a quart, the liquor not to be drunk on the premises or adjacent thereto, and to sell in quantities less than a quart, for medicinal purposes only, on the prescription of a regular practicing physician, fifty dollars." It is the contention of the state that before the appellant could, as a druggist, retail whisky at his drug store in quantities not less than a quart, or in less quantities for medicinal purposes and on the prescription of a physician, he must procure a license so to do, and pay therefor the sum of $50; that the plain letter of the law is that he "shall procure a license and pay the tax thereon"; that his duty is to know the law, and to know that the...