Opinion
February 13, 1959.
Appeal from the Pulaski Circuit Court, R.C. Tartar, J.
Joe A. Montgomery, H.K. Spear, Somerset, for appellant.
Jo M. Ferguson, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for appellee.
Appellant, Larry Taylor, was convicted of illegal possession of alcoholic beverages in dry local option territory for the purpose of sale, and was fined $40 and sentenced to confinement in jail for ninety days.
The only reproduction of the evidence heard at the trial is here by medium of a bystander's bill of evidence. It reads:
"Be it remembered that upon the trial of this case the defendant, Larry Taylor, testified the beer in question, namely 18 cans and 3 quarts was not his; that he did not own the beer or have it in his possession for any purpose. He further stated the beer belonged to his brother, Herschel Taylor. Herschel Taylor testified the beer in question belonged to him Herschel Taylor; that he procured it in Richmond, Kentucky, which is wet territory and same was not for any illegal purpose."
Appellant contends that under such a state of facts, his defense was not adequately covered by the reasonable doubt instruction, and that he was entitled to specific instruction which would submit his defense.
We agree. See: Noble v. Com., Ky., 295 S.W.2d 343; Bates v. Com., Ky., 262 S.W.2d 184; Blevins v. Com., Ky., 258 S.W.2d 501; Hammons v. Com., Ky., 252 S.W.2d 51; Scott v. Com., 311 Ky. 419, 224 S.W.2d 458; Patrick v. Com., 286 Ky. 265, 150 S.W.2d 901; Gossett v. Com., 262 Ky. 540, 90 S.W.2d 730; Herrin v. Com., 231 Ky. 139, 21 S.W.2d 139; Kratzer v. Com., 228 Ky. 684, 15 S.W.2d 473; Keifner v. Com., 225 Ky. 163, 7 S.W.2d 1066.
The motion for an appeal is sustained; the appeal is granted; the judgment is reversed and the case remanded for a new trial.