Sams v. Commonwealth

278 S.W. 103, 211 Ky. 765, 1925 Ky. LEXIS 965

Opinion

Opinion op the Court by

Chiep Justice Clarke

Affirming.

Appellant was tried and convicted upon a warrant charging him, with unlawfully and knowingly selling Jamaica ginger, a medicinal preparation, for beverage purposes in violation of section 2554a-5, Kentucky Statutes. His punishment was fixed at a fine of $300.00 and confinement in the county jail for 60 days.

Appellant admitted, as the witnesses for the Commonwealth had testified, that he sold to Milt King upon a single occasion within twelve months .next before the date of the warrant three bottles of Jamaica ginger, and the only question for decision is whether or not the sale was made as is prohibited by the statute “under circumstances from'which the seller might reasonably deduce the intention of the purchaser to use them for such (beverage) purposes.” The witnesses for the Commonwealth and appellant agree that the purchaser, Milt King, told appellant that he wanted one bottle of Jamaica ginger for himself, another for Jess Edington and the third for Jeff R-hodus. Milt King testified that he did not at the time tell appellant that he or Eddington or Rhodus was sick. Appellant testified that King did make such statements and that he would not have made the sale except therefor; that he told King that he and each of the others for whom he was purchasing a bottle (must take same according to directions, i. e., a spoonful every fif teen minutes until relieved. King being recalled in rebuttal was asked and testified as follows:

“Q. Did you tell Mr. Sams you were sick that morning? A. I would not say. I would not say I did or didn’t. I can not remember. I don’t remember wbetber I did, or not, would not say either way.

“Q. Did you tell him Jess was sick? A. No, sir, I don’t think I did.

“Q. Did you tell him the other fellow was sick? A. I don’t remember.

“Q. Were you sick that morning? A. Not as I remember.

“■Q. Did you get drunk on that jake? A. No, sir, I didn’t get drunk, I don’t think, that time.

“Q. You don’t remember what you told him? A. No., sir.”

It is insisted for the appellant that the testimony in this case is of the same character as was held insufficient in Thompson v. Commonwealth, 202 Ky. 674, 261 S. W. 5, to warrant a conviction. But the evidence is very different in the two cases. In that one, it was only shown that the defendant had bought five 2-ounce bottles of extract but only one at a time within a period of six or eight months and that same was bought for cooking-purposes. Here the three bottles were bought all at once under circumstances such as in two very recent cases have been held sufficient to warrant an inference that the extract was being purchased for beverage purposes. Forgy v. Commonwealth, 206 Ky. 591, 268 S. W. 298; Hale v. Commonwealth, 206 Ky. 685, 268 S. W. 344.

Judgment affirmed.