Opinion
Decided January 12, 1926.
Appeal from Bell Circuit Court.
M.G. COLSON for appellant.
FRANK E. DAUGHERTY, Attorney General, and CHARLES F. CREAL, Assistant Attorney General, for appellee.
Affirming.
Appellant, George Williams, prosecutes this appeal from a judgment of the Bell circuit court convicting him of knowingly selling a medicinal preparation containing more than one-half of one per cent by volume of alcohol for beverage purposes.
His argument that a demurrer to the indictment should have been sustained is not supported but is refuted by Thompson v. Commonwealth, 202 Ky. 674, cited and relied upon by him. The indictment in all particulars measures up to the opinion of this court in that case in that it directly charged appellant with having made the sale of the intoxicating medicinal preparation with knowledge that it was being purchased for beverage purposes.
Appellant's contention that the trial court erred in not directing his acquittal at the close of the testimony and that the verdict is flagrantly against the evidence can not be sustained. The evidence establishes that appellant, in a single transaction on the occasion in question, sold to the witness, Sillus Roark, five bottles of Bateman's drops, which contained forty-five per cent by volume of alcohol. Such a sale at one time is a circumstance from which the seller might reasonably deduce the intention of the purchaser to use it for beverage purposes and evidence of those facts authorized the submission of the case to the jury and sustains the verdict found by it. See Forgy v. Commonwealth, 206 Ky. 591; Hale v. Commonwealth, 206 Ky. 685, and A. L. Sams v. Commonwealth, 212 Ky. 47.
Appellant's complaint that the instruction given is erroneous is wholly without merit. The instruction required the jury to believe from the evidence beyond a reasonable doubt that the sale was made within twelve months before the finding of the indictment; that the medicinal preparation known as Bateman's drops contained more than one-half of one per cent by volume of alcohol, and that appellant knowingly sold it for beverage purposes, or did so under such circumstances as that he might reasonably deduce that it was being purchased for that purpose, before they could find the defendant guilty. The instruction fully and fairly submitted all the elements of the offense charged.
No error occurring upon the trial hereof appearing in the record, the judgment is affirmed.