
    CASE 40 — INDICTMENT
    JANUARY 18.
    Lucker vs. The Commonwealth.
    APPEAL PROM LOUISVILLE CITY COURT.
    On the trial of an indictment for keeping a atippling-house’r in the city of Louisville, the only proof before the jury was, that spirituous liquors had been drank in the house 11 more than twice,and that the defendant had a State license to retail such liquors, and had also paid for but had not obtained, a city license. On these facts the jury was instructed in effect to find the defendant guilty. Held — That the instruction was erroneous, and the verdict against the defendant was not authorized by the testimony; that this court has no judicial knowledge of any ordinance requiring a city license, and no such ordinance was shown; nor did the testimony, in such a penal case, authorize th.e deduction that the liquor drank in the defendant’s house was drank with his consent or was sold by him.
    Harney & Harney, For Appellant,
    CITED—
    
      Bouvier’s Law Dictionary, “ Tippling-house.”
    
    4 Blackstone, 64.
    1 Duvall, 161; Taylor vs. Commonwealth.
    
    2 Duvall, 90; Pike vs. Commonwealth.
    
    
      City Charter of Louisville, sec. 14, art. 5.
    18 B. Mon., 35; Ritte vs. Commonwealth.
    
    2 B. Mon., 281; Duncan vs. Commonwealth.
    
    15 B. Mon.; Commonwealth vs. Allen.
    
    14 B. Mon., 385; Commonwealth vs. Kamp.
    
    2 B. Mon., 296; Commonwealth vs. Luck.
    
    
      Revised Statutes, sec. 3, art. 4, chap. 99.
    
      Criminal Code, sec. 121.
    
      John Rodman, Attorney General, For Appellee,
    CITED—
    4 B. Mon., 4; Commonwealth vs. Turner.'
    
    
      Criminal Code, secs. 335, 349, sub-sec. 3.
    3 Met.', 10; Clem vs. Commonwealth.
    
    1 Met., 366; Murphy vs. Commonwealth.
    
   JUDGE ROBERTSON

delivered the opinion oe the court:

On the trial of an indictment against the appellant for keeping a “tippling-house” in the city of Louisville, the jury returned a verdict for sixty dollars, for which the court, overruling a motion for a new trial, rendered a judgment against him, to reverse which he prosecutes this appeal.

The only testimony before the jury was, that spirituous liquors had been drank in the appellant’s house “ more than twice,” and that he had a State license to retail such liquors, and had also paid for, but had not obtained, a city license.

On these facts the jury was instructed, in effect, to find the appellant guilty; that instruction was erroneous, and the verdict was not authorized by the testimony. This court has no judicial knowledge of any ordinance requiring a city license, and no such ordinance was shown ; nor did the testimony, in such a penal case, authorize the deduction that the liquor drank in the appellant’s house was drank with his consent or was sold by him.

Wherefore, the judgment is.reversed, and the cause remanded for a new trial oh the indictment, which we adjudge to be substantially sufficient.  