
    Sloan v. Commonwealth.
    (Decided September 27, 1910).
    Appeal from Magoffin Circuit' Court.
    Intoxicating Liquors — Sale in Local Option Territory. — In a prosecution against one for soiling whiskey in local option territory, the evidence showed that a fifteen-year-old brother, who was living with defendant, made the sale, and that defendant had a large quantity of whiskey in bottles stored in an old out-house, from which the sales were made. Appellant introduced no evidence. Held, that the jury' evidently did not believe that a boy under 16 years of age was carrying on such an illegal business without the knowledge and permission of his elder brother. •
    ■ J. W. HOWARD for appellant.
    JAS. BREATHITT, Attorney General, and TOM B. McGREGOR, Assistant Attorney General, for appellee.
   Opinion of the Court by

Chief Justice Barker—

Affirming.

The appellant, Robert Sloan, was indicted by the grand jury of Magoffin county, charged with the offense of permitting liquor to be sold by retail on his premises, .in violation of the local option law prevailing in the district where the premises are situated. Upon the trial the jury found appellant guilty as charged in the indictment, and fixed'his punishment at a tine of one hundred dollars. Prom this judgment the appellant prosecutes this appeal.

There are several technical objections made to the procedure, which we shall not notice further than to say that they are, in our opinion, without merit. The indictinent was drawn under section 2572 of the Kentucky Statutes, and is, we think, sufficient to support the judgment rendered against appellant in the court below.

The evidence for the Commonwealth shows that the prosecuting witness purchased a bottle of whisky from George Sloan, a boy under sixteen years of age, who is a brother-of the defendant and lives with him as one of his family. The premises belonged to the appellant. The testimony shows, without contradiction, that there was a large barrel of whisky in bottles, stored in an out-house belonging to appellant, and it was from this barrel that the young boy obtained the whisky sold to the prosecuting witness. The question submitted to. the jury was, whether or not this sale by the boy was done with the permission of appellant.

We think, from all the circumstances surroimding this transaction, the jury were warranted in drawing the conclusion that the sale was made with the knowledge and permission of appellant. He was in an adjoining house where he carried on a small merchandise venture and which was near the place where the illegal sale was made. Appellant introduced no evidence' for himself, but rested upon the suppose weakness of the Commonwealth’s case. The jury evidently did not believe that a boy under sixteen years of age was carrying on an illegal business such as that detailed above, almost in the very presence of his elder brother without the permission of the latter; and no doubt this conclusion was strengthened by the fact that appellant introduced no evidence to show that the boy was operating on his own account. The illegal sale of whisky is not carried on openly and above board as is legitimate merchandising, but it is surreptitiously done, the real party attempting to keep in the back-ground, and for this purpose operating through some third person. Undoubtedly, the jury, knew this, and, so knowing, they reached the conclusion that the owner of the store and all the other property was also the owner of the barrel of whisky in the outhouse. We do not feel warranted in saying that they were mistaken in this. They were the judges of the facts, and we will not disturb their verdict.

The instructions of the court fairly presented the law of the case, and there was no error in the proceedings which would warrant a reversal of the judgment.

Judgment affirmed.  