Lewis v. Commonwealth

259 S.W. 34, 202 Ky. 191, 1924 Ky. LEXIS 675

• Court: Court of Appeals of Kentucky
• Decided: February 19, 1924
• Status: Published

Opinion

Opinion op the Court by

Chief Justice Sampson

Affirming.

The grounds urged for a reversal of the judgment of conviction in this case, are: (1) Error of the court in overruling appellant’s motion for a directed verdict of not guilty; (2) error in failing to instruct the jury on the whole law of the case.

The charge against appellant, preferred by warrant, is selling intoxicating liquors in violation of the Eash-Gullion act. He was convicted both in the city court and in the Jefferson circuit court, and adjudged to pay a fine and serve a jail sentence. Prom the judgment of the latter court, he appeals.

The transcript of evidence includes the testimony given by Sergeant W. I. Lispcomb and officer Joe Mc-Gregor of the police force of the city of Louisville, and Dr. Yernon Eobbins, chemist. Sergeant Lispcomb directed officer McGregor to go to the place of business of appellant Lewis on 18th street, and buy a half pint of moonshine whiskey. Appellant was operating a soft drink stand and restaurant. McGregor entered the place about 7:30 in the morning and called for a half pint of whiskey. Without returning a word, appellant, according to the evidence of McGregor, handed him a half pint of liquor, whereupon the witness McGregor gave him seventy-five (75c) in payment therefor. The half pint of whiskey was introduced as evidence and was shown by analysis to contain alcohol in such great quantities as to be highly intoxicating. The witness proved it to be moonshine whiskey. The evidence of officer McGregor made out a clear case of selling intoxicating liquors in violation of our present statutes. The evidence of Sergeant Lispcomb corroborated that of the other officer, by showing he went with McGregor to near the business place of Lewis and waited until McGregor entered the place and later came to the door with appellant in charge, having in his possession a half pint of liquor which he exhibited to the sergeant, and in the presence of appellant Lewis announced he had purchased it from Lewis and had arrested him on the charge of selling liquor in violation of law. They also showed that the reputation of Lewis for trafficking in intoxicating liquors was bad.

The defendant introduced no evidence in his behalf. Upon the evidence given by the officers the court instructed the jury in substance that if it believed from the evidence beyond a reasonable doubt that the appellant Lewis, in Jefferson county, within six months before the 10th of January, 1923, the date of the warrant, wilfully and unlawfully sold to McGregor a half pint of intoxicating liquors not for sacramental, medicinal, scientific or mechanical purposes to find him guilty as charged in the warrant. The court also instructed the jury that if it had a reasonable doubt from the evidence of the guilt of the defendant to find him not guilty. This was all the law of the case.

Relying upon the evidence of the officers and following the .instructions of the court, the jury found him guilty and fixed his punishment at a fine of $100.00 and thirty (30) days in jail. There appears to have been no defense whatever to the case. Appellant did not testify or offer evidence. The evidence for the Commonwealth was entirely sufficient to warrant the jury in finding appellant guilty, and the instructions were regular in all respects.

We find no error to the prejudice of the appellant.

Judgment affirmed.