
    Marcum, Mayor, et al. v. Smith.
    (Decided March 15, 1935.)
    THOS. F. YOUNG for appellants.
    HIRAM H. OWENS, J. B. JOHNSON and T. B. CULTON for appellee.
   Opinion op the Court by

Drury, Commissioner

Affirming.

S. B. Marcum, as mayor of Corbin, filed written charges against John Y. Smith, a policeman of that city, upon which the mayor and commissioners found Smith guilty. Smith appealed to the circuit court, where Smith was found not guilty, and the mayor and. commissioners have appealed. For procedure, see Ky. Stats, sec. 3351a-2, subsecs. 3 and 4.

The charges were intoxication while on duty December 15, 1933, and misconduct while on duty December 24, 1933.

The Intoxication Charge.

Jess Anders was drunk. His brother, Roy Anders, undertook to take him home, and they had a fight. About 1 o’clock that night their mother telephoned for the police, and Officers Smith and Anderson came and put Jess Anders in bed. Jess threw up on the floor. Mrs. Anders was angry and wanted Smith to go to the hotel and arrest every one there. Smith refused to do so unless she would swear out warrants for the parties she wanted arrested, which made her angry at him. She testifies Smith was drunk, that he staggered, and that she could smell his breath. What she smelled may have been the vomit of her son. Witnesses testified to the bad reputation of Mrs. Anders for truth and veracity. The officer who was then with Smith testifies Smith was sober. The officer who rode with Smith from 2 a. m. till morning testifies Smith was sober. Roy Anders who, so every one says was sober, does not testify. We must under this evidence sustain thje court’s finding of “not guilty.”

Misconduct.

On Christmas Eve there was a party at the Ledington Hotel. The beer gave out. -8. E. Durham has a beer agency. Mrs. Sheffler works for him. Smith went to her home and aroused her and Durham and told them the hotel people wanted some beer. They told him Bill Jones had the key. Smith called on Jones, who got out the beer, put it in the patrol wagon which Smith was driving, got in, 'and went with Smith to the hotel. Jones is a crippled man, and on reaching* the hotel he asked Smith to take the beer in and Smith did so. If this had been a case of Coca-Cola, no one would have thought anything of it, but it was 3.2 beer, it was hauled in the city patrol wagon, with the city’s gas, by one of the city’s policemen, which, it is argued, was terrible; but while this is not to be commended, certainly the court’s finding* that this was not such misconduct as to require Smith’s removal should not be overturned on this evidence.

Judgment affirmed.  