Court of Appeals of Kentucky.
WILSON v. COMMONWEALTH.
Dec. 1, 1903.
ACTION: Reversed.


Appeal from Circuit Court, Knox County.
"Not to be officially reported."
Harlan Wilson was convicted of selling liquor in violation of law, and appeals.

PAYNTER, J.
The indictment charges that the appellant did "unlawfully sell, give, procure, and furnish spirituous, vinous, and malt liquors and intoxicating beverages" in less quantity than five gallons. The court overruled a motion for a peremptory instruction for the appellant, and among other instructions gave the following: "If you shall believe from the evidence beyond a reasonable doubt that the defendant, Harlan Wilson, in this county, and within twelve months before the finding of the indictment herein, did unlawfully and willfully procure the witness W. E. Callihan to engage in a divide by signing a paper with defendant and others, and paying in his part of a fund sufficient to buy a five-gallon keg of whisky, and that the defendant, within five miles of Union College, by himself or another, delivered to the witness whisky in proportion to the amount of money paid in by the witness, and that the witness thereby received less than five gallons of such whisky, then you ought to find the defendant guilty, as charged in the indictment, and fix his punishment under instruction No. 1, above." The facts are: The appellant and others contributed $12 to buy a five-gallon keg of liquor. The money was raised by appellant circulating a paper for the signatures of those desiring to purchase it. Each party gave money to pay for a certain quantity of the liquor according to the price they were to pay for the whole. When the money was made up, it was given to the dealer's driver, who delivered it to the place agreed upon. The subscribers assembled at that place. The appellant called out the name of each subscriber and the amount which he had paid, and another member of the subscribing party measured each subscriber's pro rata of the liquor. It appears that the appellant did not own the liquor, did not sell it, and did not procure it for sale by himself or any one else. He was simply the purchaser, together with others.

The judgment is reversed for proceedings consistent with this opinion.



     

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