Legal Opinion

Mitchell v. Commonwealth

Court of Appeals of Kentucky

Decided May 17, 1899PublishedCited by 12 opinions

Case 73 — INDICTMENT— APPEAL ERO'M LAUREL CIRCUIT COURT. 1. Proof ¡of sale of Jamaica ginger under an indictment for selling spirituous, .vinous and malt liquors and the mixtures thereof is a variance. 2. The Jamaica ginger sold in this case is a patent medicine and if it is a legal possibility to convict for a sale of a vial of said ginger, then under -the law it certainly could not have been under the charge of the indictment in this case. 3. There was no evidence to…

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Case 73 — INDICTMENT— APPEAL ERO'M LAUREL CIRCUIT COURT. 1. Proof ¡of sale of Jamaica ginger under an indictment for selling spirituous, .vinous and malt liquors and the mixtures thereof is a variance. 2. The Jamaica ginger sold in this case is a patent medicine and if it is a legal possibility to convict for a sale of a vial of said ginger, then under -the law it certainly could not have been under the charge of the indictment in this case. 3. There was no evidence to warrant a conviction. 4. The misnomer of the county was fatal. 5. The verdict was a nullity. (The other points discussed by…

1Opinion of the Court

JUDGE DuRELLE

delivered the opinion oe the court.

Appellant was convicted of the offense of selling intoxicating liquors in violation of a special act applicable to Laurel and four other counties. The sole proof was of a phial of Jamaica ginger, White’s brand. It is claimed that this was a variance. It was not a variance, if Jamaica ginger was a spirituous liquor. The jury found that it was. But the objection is urged that there was no evidence *604to support this finding, as both the vendor and vendee swore it was not intoxicating. Evidence of a druggist was introduced that the regulation…

2Cases cited1 opinion

  1. Thompson v. CommonwealthCourt of Appeals of Kentucky · 1898

3Cited by12 opinions

  1. Elliott v. CommonwealthCourt of Appeals of Kentucky · 1922
  2. McLean v. PeopleSupreme Court of Colorado · 1919
  3. State v. MillerSupreme Court of Kansas · 1914
  4. Frey v. CommonwealthCourt of Appeals of Kentucky · 1916
  5. Gourley v. CommonwealthCourt of Appeals of Kentucky · 1910

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