Wathen, Mueller & Co. v. Commonwealth

• Decision Date: 26 January 1909
• Citation: 116 S.W. 339
• Parties: WATHEN, MUELLER & CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

116 S.W. 339

WATHEN, MUELLER & CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 26, 1909

Appeal from Circuit Court, Marion County.

"Not to be officially reported."

Wathen, Mueller & Co. were convicted of unlawfully selling and retailing quantities of whisky of less than five gallons, and appeal. Reversed and remanded.

Samuel Avritt, Lafe S. Pence, and Lindsay & Edelen, for appellants.

Jas. Breathitt, Atty. Gen., Tom B. McGregor, Theo. B. Blakey, R. L. Durham, and W. W. Spalding, for the Commonwealth.

NUNN, J.

The judgment appealed from in this case was rendered on the trial of appellants under an indictment for the unlawful selling by retail of a quantity of whisky of less than five gallons. Mike Lee is the person to whom the alleged sale was made, and the whisky he received came from the same barrel referred to in an opinion this day delivered in a case styled the same as this one. 116 S.W. 336.

The same reasons for reversal are presented in this case as in that, with this additional one: Appellants' counsel contend that the conviction of appellants for selling J. B. Thomas whisky from the same barrel is a bar to the prosecution in this case. This is error. If it were a sale by retail to Thomas, it was also a sale to Lee by retail, as well as to each and every subscriber for the whisky. Each sale was a separate offense.

For the reasons given in the opinion referred to, the judgment in this case is reversed and remanded for further proceedings.