Case one of two
23 Ky.L.Rptr. 1992
Court of Appeals of Kentucky.
GRIFFIN v. COMMONWEALTH.
Feb. 27, 1902.
ACTION: Affirmed.


Appeal from circuit court, Knox county.
"Not to be officially reported."
Grant Griffin was convicted of the offense of selling spirituous liquors in violation of a local prohibitory law, and he appeals.

HOBSON, J.
Appellant, Grant Griffin, was indicted for selling to Charles Messer spirituous liquors in quantities less than five gallons, in violation of the local prohibitory law in force in Knox county. The proof by Messer was as follows: "I went to the defendant in Knox county, and told him I wanted a pint or quart of whisky, I don't remember which. He told me he could not sell whisky in less quantities than ten gallons. I then told him I would take ten gallons, but I could not take it all away with me at that time; but that I would buy the keg, and leave it there, and take it away as I wanted it. We agreed to this. I then had my bottle filled. I don't remember the size of the bottle, but I did not at that time take away as much as five gallons of the whisky; but I made several other trips to the place and took away of the whisky until I had taken ten gallons, but I did not take as much as five gallons at one time, and I paid for the whisky as I got it." The defendant then testified in his own behalf, contradicting the statements of Messer. He also stated that Messer was at his place one day with several other men. Some of the crowd paid him $20 for a keg of whisky containing ten gallons, and he turned the whisky over to them. They divided it among themselves, and he did not know how much any of them got; but if they left any of the whisky there he did not know it. On this evidence the court instructed the jury as follows: "If you believe from the evidence beyond a reasonable doubt that the defendant, Grant Griffin, in this county, and within one year before the finding of the indictment, either directly or indirectly sold to the witness whisky or brandy in less quantities than five gallons, you will find the defendant guilty as charged in the indictment, and fix his fine at not less than $100 nor more than $200." "If the defendant, at the time and place stated by the witness, pretended to sell the witness ten gallons, and let him have it by the small, he would be liable." "If you have a reasonable doubt of the defendant being proven guilty, you will find him not guilty." It is objected that the court used in instruction No. 1 the words "directly or indirectly." But these are the words of the statute creating the offense. The indictment follows the statute, and the court, in drawing the instructions, followed the indictment. "No trick, device, subterfuge or pretense shall be allowed to evade the operation or defeat the policy of the law against selling spirituous, vinous or malt liquors without license, or in violation or evasion of any local option laws prevailing in any county, town, city, precinct or municipality of this commonwealth." "A conviction for the offense of selling spirituous, vinous or malt liquors without license to do so, or for selling same in any county, town, city, precinct or municipality of this commonwealth where local option laws prevail, may be sustained against the person in possession of the premises on which said liquor is obtained, furnished, or disposed of in violation or evasion of law, if the following facts appear: A house, room, inclosure or other place where spirituous, vinous or malt liquors are furnished or obtained in violation or evasion of law, or where some device is used to dispose of, furnish or obtain such liquor in violation or evasion of law." The second instruction given by the court was warranted under these provisions. It is urged that the defendant's side of the evidence was not submitted to the jury; but we are unable to see that this is true. By the first instruction the jury were only authorized to convict if the defendant sold to the witness whisky or brandy in less quantities than five gallons, and by the second they were told that if, at the time and place stated by the witness, defendant pretended to sell him ten gallons, and let him have it by the small, he would be liable. These instructions seem to us to aptly submit to the jury the question whether Messer or the defendant had given the correct version of the transaction.

Judgment affirmed.

Ky.App. 1902.
GRIFFIN v. COMMONWEALTH.
66 S.W. 817, 23 Ky.L.Rptr. 1992


Case two of two
23 Ky.L.Rptr. 2205
Court of Appeals of Kentucky.
GRIFFIN v. COMMONWEALTH.
March 5, 1902.
ACTION: Reversed.


Appeal from circuit court, Knox county.
"Not to be officially reported."
Grant Griffin was convicted of the offense of selling liquor in violation of the local option law, and he appeals.

HOBSON, J.
Appellant was indicted for selling to S. M. White spirituous liquors in violation of the local option law. The testimony for the commonwealth by the witness White was as follows: "I went to a small house near Gray's station, in Gray's voting precinct in Knox county, within twelve months before this indictment. There were several men on the outside and several on the inside of the house. The defendant, Grant Griffin, was in the house all the time, and there was a man going about through the crowd inside and outside of the house. I don't know who he was. He had a cigar box, and me and the others there present put in various sums of money until we got $20 made up, and then this man took it, and paid it over to defendant, Griffin, and we got ten gallons of whisky, and we all divided it in the house, after we bought it, among ourselves. I got either a quart or a half gallon out of the keg." The defendant, Griffin, testified as follows: "At the time that the witness White speaks of, I was operating a distillery near Gray's station, in Knox county, and I owned and controlled the house spoken of by the witness. I use that house for my private warehouse, and kept my whisky stored there in the original ten- gallon packages. I cannot state whether the witness got the whisky he states or not. I never sold whisky at any time in quantities less than ten gallons in the original package. I did not know how the money was procured that was paid to me. I did not direct anybody to make up $20 for a keg of whisky, and did not know that it was being done. One man always paid me the money, and I delivered him the whisky in the original package. I don't know what they did with it after they bought it." On this evidence the court instructed the jury as follows: "If you believe from the evidence beyond a reasonable doubt that the defendant, Grant Griffin, in this county, and before the finding of the indictment, either directly or indirectly sold to the witness intoxicating liquors, to wit, whisky or brandy, in less quantities than five gallons, you will find the defendant guilty as charged in the indictment, and fix his punishment at a fine of not less than one hundred nor more than two hundred dollars." "If you have a reasonable doubt of the defendant being proven guilty, you will find him not guilty."

Section 2558, Ky. St., which is part of the local option act, provides: "The provisions of this act shall not apply to any manufacturer or wholesale dealer who in good faith and in the usual course of trade sells by the wholesale in quantities of not less than five gallons, delivered at one time and not to be drunk on the premises." Five things must concur in order to constitute a wholesale transaction within the exception:

(1) The sale must be by a manufacturer or wholesale dealer;
(2) in good faith, and in the usual course of trade;
(3) by the wholesale in quantities of not less than five gallons;
(4) delivered at one time; and
(5) not to be drunk on the premises; and that when a sale is made the vendor takes the responsibility of seeing that the liquor is not drunk on the premises.

"No trick, device, subterfuge or pretense shall be allowed to evade the operation or defeat the policy of the law against selling spirituous, vinous or malt liquors without license, or in violation or evasion of any local option law prevailing in any county, town, city, precinct or municipality of this commonwealth." "A conviction for the offense of selling spirituous, vinous or malt liquors without license so to do, or for selling same in any county, town, city, precinct or municipality of this commonwealth where local option laws prevail, may be sustained against the person in possession of the premises on which said liquor is obtained, furnished or disposed of in violation or evasion of law, if the following facts appear: A house, room, inclosure or other place where spirituous, vinous or malt liquors are furnished or obtained in violation or evasion of law, or where some device is used to dispose of, furnish or obtain such liquor in violation or evasion of law." Under these provisions, the court should have further instructed the jury that, if the defendant was a manufacturer or wholesale dealer, and in good faith and in the usual course of trade sold the whisky by the wholesale in quantities of not less than five gallons, delivered at one time, and none of it was drunk on the premises, they should find him not guilty; but that, if the money, with his knowledge, was made up and the whisky was delivered by him with a view to the division of the whisky as soon as it was got between the contributors, including the witness White, and the transaction was not in good faith a selling by wholesale, but a device to evade the operation of the local option law, they should convict him.

Judgment reversed, and cause remanded for a new trial and further proceedings consistent with this opinion.

Ky.App. 1902.
GRIFFIN v. COMMONWEALTH.
66 S.W. 1034, 23 Ky.L.Rptr. 2205



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