T H E
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KEEFE v. COMMONWEALTH
(Court of Appeals of Kentucky. April 13,
Intoxicating Liquors <S=»23S(6)-Venue
Offense-Question Fob Jury.
Evidence that accused sold whisky at distillery
in a certain county and accused's admission that
his residence was in such county at time of
sale, and that the local option law was then in
force in that county, held, sufficient to take
the case to the jury on the question of venue.
[Ed. Note.-For other cases, see Intoxicating
Liquors, Cent. Dig. § 324.]
Appeal from Circuit Court, Pendleton County.
Mun Keefe was convicted of selling Intoxicating
liquors, and appeals. Affirmed.
E. E. Barton, of Falmouth, for appellant. M. M.
Logan, Atty. Gen., and D. O. Myatt, Asst. Atty.
Gen., for the Commonwealth.
SETTLE, C. J. The appellant, Mun Keefe, was
tried and convicted in the Pendleton circuit
court under an Indictment charging him with the
offense of selling Intoxicating liquors In local
option territory, and his punishment fixed by
the verdict of the jury at a fine of $100 and
imprisonment In the county jail 40 days. He was
refused a new trial and has appealed.
The appellant asks a reversal of the Judgment
upon the sole ground that the verdict was
unauthorized by the evidence. More particularly
stated, his contention Is that the evidence
wholly failed to prove that the sale of the
whisky was made In Pendleton county. The record
contains the admission by the appellant that the
local option law Is, and was at the time of the
commission of the offense charged, In effect In
Pendleton county; and, according to the
testimony of Tom Coghill, the only witness
introduced for the commonwealth, he purchased of
appellant In January, 1916, at the "Old Tub
Fowler Distillery Company" a pint of whisky, for
which he at the time paid him, which purchase
was made while the grand jury of Pendleton
county was in session and but a day or two
before he appeared In obedience to a subpoena
before that body and gave the testimony upon
which the Indictment was found. It does not
appear from Coghill's testimony, or otherwise,
that appellant was an employed connection with
Its business. The witness further testified that
a day or two after his purchase of the pint of
whisky from appellant he was given another pint
by the latter been sustained. Clearly the effort
to charge j of the distillery company, or that
he had any other cases see same topic and
KEY-NUMBER In all Key-Numbered Digests and Indu
The appellant, In testifying, admitted that he
lived in Falmouth, Pendleton county, at the time
Coghill claimed to have purchased the pint of
whiskey from him, and continuously for about 30
years previously, but that In August following
he removed to the city of Covington, where he
now resides. He testified that he remembered
giving Coghill a pint of whisky, but with
respect to the alleged sale of the whisky to
him, charged In the indictment, said: "I do not
remember of selling him any whisky In January,
1916." It will be noticed that he failed to
positively deny the sale of the pint of whisky
to Coghill, and committed himself no further
than to declare that he had no recollection of
making the sale. We are not surprised,
therefore, that the jury were unwilling to
accept his equivocal statement, based upon a
want of recollection, in the face of the
positive statement of Coghill that the sale was
The two witnesses named furnished the only
evidence offered or heard on the trial ; and,
while it is true that neither of them testified,
or was asked, whether the sale of the whisky was
made in Pendleton county, It clearly appears
from the testimony of Coghill that it occurred
at the Old Tub Fowler Distillery Company, and
where, as In this case, the jury, being all
residents of the county, must be presumed to
know whether or not the Old Tub Fowler
Distillery Company Is In Pendleton county, and
they were told by the court in the first
Instruction given that conviction of the
appellant of the offense charged would be
unauthorized unless they believed from the
evidence beyond a reasonable doubt that the sale
of the whisky, if made by him at all to Coghill,
was made in Pendleton county, it will not, on
appeal, be assumed that the verdict finding him
guilty was unauthorized by the evidence. The
foregoing conclusion is strengthened by
appellant's own testimony that he was, at the
time of such sale, a resident of Pendleton
county, and his admission of record that the
local option law was In force in that county.
A similar state of case to that we here have was
presented in Kennedy v. Commonwealth, 100 S. W.
242, 30 Ky. Law Rep. 1063, In the opinion of
which It Is said: "While it is true that no
witness testified, in terms, that deceased was
shot in Lincoln county, or that he died therein,
it is manifest from the evidence that his death
took place in his own home on a small tract of
land of which some of the witnesses said he was
the owner. It was also in evidence that his land
adjoins, or is close to the farm known as the
Peter Kennedy place, which is owned by the
father of the appellant, and, further, that the
shooting of deceased occurred at or near the
'Greenbrier Spring,' which seems to be a
well-known spring at or very near the Kennedy
land. This evidence necessarily localized and
precisely fixed in the minds of the jury the
place of the shooting and of the death of
deceased, and enabled them to determine whether
or not the crime was committed in Lincoln
county. Moreover, under the instructions of the
court they were required to believe that the
crime was committed in Lincoln county. Ky.,
before they could find the appellant guilty.
Such facts as these have been repeatedly
recognized by this court as sufficient to
establish tit venue of the offense or crime."
To the same effect are the following cases,
cited In the above opinion:
v. Patterson, 8 S. W. 694, 10 Ky. Law Rep. 167;
v. Commonwealth, 14 S. W. 833, 12 Ky. Law Rep.
Combs v. Commonwealth, 25 S. W. 592, 15 Ky. Law
Pickerel v. Commonwealth, 30 S. W. 617, 17 Ky.
Law Rep. 120;
Warner v. Commonwealth, 84.S. W. 742, 27 Ky. Law
Combs v. Commonwealth, supra, we, In part, said:
"There is no proof, in so many words, that the
killing occurred in Breathitt county, that the
instructions required the jury to so believe.
and the proof that it occurred at the 'mouth of
Buckhorn' and at 'Jones and Fields storehouses'
seems to have been sufficient evidence on that
question for the jury."
We think the evidence sufficient to take the
case to the jury both as to the question of sale
and venue of the offense. The record furnishes
no reason for disturbing the verdict. Hence the
judgment Is affirmed.
JEFFRIES' EX'R v. FERREE.