Opinion of the court by
— Reversing.
Nelse Boggs was indicted in the Lawrence Circuit Court for violating the local option law in selling five gallons of whisky to T. W. Hill. On the trial of the case the proof for the commonwealth was as follows; “I purchased from the defendant, Nelse Boggs, five gallons of whisky, and paid him for it. He gave me the whisky in a five-gallon keg all at the same time, and I took it all away from his distillery at that time, and did not drink any of it on the premises. I think this sale occurred in the early spring of 1908. My wife was very low with typhoid fever, and the doctors told me I must get some whisky, as her life probably depended up it. I first tried to get a half of a gallon from Mr. Boggs, the defendant, and told him that I wanted it for my wife, hut he would not let me have
The defendant was introduced'on his own behalf, and testified as follows: “I know Mr. Hill, the witness for the Commonwealth, and sold him the whisky he speaks of. I sold him a five-gallon keg of whisky of my own manufacture. The whisky was in the original package, and was all delivered to witness at the same time, and he took it all away, and did not drink any of it on the premises. Mr. Hill first asked for a half gallon, but I refused to let him have any amount less than five gallons, and he agreed to buy the five-gallon keg, and I sold it to him. I had formerly run and operated a distillery, but about 1907 I shut down my distillery, and did not manufacture any more whisky thereafter. This whisky I sold him was my own manufacture, but I was not then manufacturing whisky. I had shut down my distillery some time before this sale, and at the time of the sale was not manufacturing any whisky at all. I could not say whether Mr. Hill, the witness, was a retail liquor dealer when I sold him the whisky or not, but he had been and had a retail license. ’ ’
On this evidence the court instructed the jury in substance that, if they believed from the evidence beyond a reasonable doubt that Boggs had sold whisky to Hill, they should find him guilty. He also gave them the-following instruction: “Although the jury should believe from the evidence beyond a reasonable doubt as defined in instruction No. 1, yet if they further believe from the evidence that the defendant at the time he sold said liquors, if he did so, was a manufacturer of liquors, and said liquor was of his
The indictment was first found on May 8,1908, and, a demurrer having been sustained to it, a new indictment was found. The sale relied on therefore was made before May 8, 1908, and, as Mr. Hill says, in March of that year. The prosecution is based on section 2558a, Ky. St. 1909. That section as originally adopted read as follows:
“It shall be unlawful to sell by wholesale any spirituous, vinous, malt or other intoxicating liquors, regardless of the name by which it is called (except manufacturers selling liquors of their own make) in any county, district, precinct, town or city where the sale of such liquor has been prohibited by special act of the General Assembly, or by vote of the people under the local option law. Any person violating this act shall be deemed guilty of violating the local option law, and shall be subject to trial and punishment according to the provisions of the same and its amendments.” See Acts 1904, p. 160, c. 76.
By the act of March 21, 1906, the words “at the place of manufacture” were added after the words “of their own make.” See Acts 1906, p. 363, c. 87, by the act of March 19, 1908, the words “to a wholesale dealer or a licensed retail dealer” were added after the words “at the place of manufacture',” so that the section in its present form reads as follows: “It shall be unlawful to sell by wholesale any spiritous, vinous,
As Hill was not a wholesale or retail dealer, Boggs had no right to sell the whisky to him under the act of 1908; but that act contained no emergency clause, and did not take effect until 90 days after the adjournment of the Legislature. See Constitution, Sec. 55. The act was approved March 19, 1908, and was therefore not in force when the transaction in contest took place. The court properly so held. The instructions given the jury were based on the act of March 21, 1906. The court: in substance, told the jury that the defendant was guilty, unless at the time he made the sale he was a manufacturer of whisky. This instruction under the proof that he had shut down his distillery some time before, and was not then manufacturing whisky, induced the verdict. The evidence was conclusive that the whisky was of his own make, and was in good faith sold by him by the wholesale in a quantity not less than five gallons, delivered at one time, and not to be drunk on the premises. There was nothing indicating an evasion of the local option law. The whisky was sold at the distillery where it was made. The fact that the distillery was not then in operation is wholly immaterial. The purpose of
Judgment reversed, and cause remanded for further proceedings consistent herewith.