|Appeal from Circuit Court, Knox County|
|Commonwealth Vs. Wilson|
Court of Appeals of Kentucky|
Nov. 17, 1911
Charley Wilson was acquitted of violating the local option law, and the Commonwealth appeals. Affirmed
HOBSON, C. J.
Charley Wilson was charged with selling whisky in Knox county to John Sampson, in violation of the local option law. Upon a trial of the case in the circuit court, the court at the conclusion of the evidence instructed the jury peremptorily to find the defendant not guilty. This having been done, and the indictment having been dismissed, the commonwealth appeals.
The proof on the trial showed these facts: Wilson lives in Middlesboro, and is engaged in the saloon business there. Sampson lives in Barbourville, and telephoned to Wilson that he wanted some whisky. Wilson asked him who he had there to bring it. Sampson said, "No one," and asked Wilson if there was any one there from Barbourville. Wilson said he would look and see. A little later he called up Sampson, and told him Hiram King was there, and asked him if King would do to send the whisky by. Sampson said, "Yes." Wilson told Sampson that he could not send the whisky to him, but that he would have to deliver it to him in Middlesboro; that he would not be responsible for the whisky after he delivered it to King; that, after he delivered it to King, Sampson would be responsible for it. Sampson agreed to this, and told him to deliver the whisky to King. Wilson took the whisky to the station, and delivered it to King on the train, and charged it on Sampson's account with him. King took the whiskey on the train with him to Barbourville, and there delivered it to Sampson or his servant.
These were all the facts shown, and there was no contradiction in the evidence. The charge against Wilson was that he had sold the whisky in Knox county. The selling of the whisky in Middlesboro was lawful. So the only question in the case is whether the sale of this whisky was made in Middlesboro, or in Barbourville. The sale is completed when the vendor delivers the property and parts with the control of it. Wilson delivered this whisky to King in Middlesboro. If the whisky had been lost between Middlesboro and Barbourville, the loss would have fallen on Sampson. It was not Wilson's whisky after he delivered it to King for Sampson, for upon Sampson's agreement it was to be his whisky from that time. Under the agreement between the parties, Sampson was bound for the price of the whisky after Wilson delivered it to King, although he had failed to get it. King did not hold the whisky for Wilson. He held it for Sampson. It was Sampson's whisky from the time it was delivered to King. If King had taken to Sampson a box of cigars under similar circumstances, certainly it would be held that the sale was made at Middlesboro; and no distinction can be made between a sale of whisky and a sale of other things.
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