Wynn v. Com.

• Decision Date: 17 April 1923
• Citation: 249 S.W. 783,198 Ky. 644
• Parties: WYNN v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

249 S.W. 783

198 Ky. 644

WYNN v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 17, 1923

Appeal from Circuit Court, Harlan County.

Wright Wynn was convicted of having intoxicating liquors in his possession for the purpose of sale, and he appeals. Reversed and remanded for new trial.

J. S Forester, of Harlan, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen for the Commonwealth.

CLAY J.

On the evidence of two witnesses who stated that they went to appellant's home and saw there several fruit jars containing whisky, appellant was convicted of having intoxicating liquors in his possession for the purpose of sale.

Complaint is made of the following instruction:

"The possession by a person of intoxicating liquors, when it is proven that he was in possession of it, is prima facie evidence of guilt for having it in possession for the purpose of sale, and the burden is upon the person having it in possession to prove that he did not have it for sale."

The case is controlled by the Prohibition Act of 1920 (chapter 81, Acts 1920), which was in force when the offense was alleged to have been committed. Section 8 of that act is as follows:

"Any person, firm or corporation knowingly or intentionally renting, hiring, or letting or lending any house, building, or other structure or premises, or any boat or other water craft, air craft or any car, truck, wagon or other vehicle, or the animal or animals used in hauling or propelling the same, to another or others, for the purpose of violating any provision of this act, shall be considered guilty of a nuisance and of a violation of this act, and the property so used shall be forfeited and sold as if the unlawful act had been committed by him or them in person.

But nothing in this act shall be construed so as to make it unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only and such liquors need not be reported, provided such liquors are for the use only for the personal consumption of the owner thereof and his family residing in such dwelling and for his bona fide guests when entertained by him therein; and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed and used. Provided, however, when any citizen changes dwelling place, he may be permitted to take such...