Frey v. Commonwealth

• Citation: 184 S.W. 899,169 Ky. 534
• Parties: FREY v. COMMONWEALTH.
• Decision Date: 18 April 1916
• Court: Court of Appeals of Kentucky

184 S.W. 899

169 Ky. 534

FREY v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 18, 1916

Appeal from Circuit Court, Ohio County.

Bruno Frey was convicted of selling intoxicating liquors in a local option county, and he appeals. Affirmed.

W. H Barnes and Heavrin & Kirk, all of Hartford, for appellant.

C. E Smith, of Hartford, James Garnett, of Louisville, M. M Logan, Atty. Gen., and Oberton Hogan, Asst. Atty. Gen., for the Commonwealth.

THOMAS J.

The appellant, Bruno Frey, was indicted by the grand jury of Ohio county for violating the local option law by selling intoxicating liquors in said county, where the local option law was in force at the time. Upon his trial, after the entering by him of a plea of not guilty, he was convicted, and his punishment fixed at a fine of $60 and confinement in the county jail for 20 days. Failing to obtain a new trial he prosecutes this appeal.

Several complaints are made to the judgment, each of which, so far as we deem necessary, will be considered in the progress of this opinion.

First. A demurrer was entered to the indictment, which was overruled. The ground insisted upon for the sustaining of the demurrer is that it is bad for duplicity in that it charges the commission of two separate and distinct offenses. The language of the indictment in its charging part is this:

"Said defendant in the county and state aforesaid on the ______ day of ______, 1914, and within twelve months next immediately before the finding of this indictment, did unlawfully sell and furnish to Charlie Condor spirituous, vinous and malt liquors, to wit, wine, and at the time he did sell and furnish such liquors the general local option laws prohibiting the sale of such liquors were in full force and effect in said county, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the commonwealth of Kentucky."

It is insisted that this language accuses the appellant of the two offenses of unlawfully selling intoxicating liquors and of unlawfully furnishing intoxicating liquors to the prosecuting witness, the one offense being denounced by section 2557, and the other by subsection 2 of section 2557b, of the Kentucky Statutes; and we are referred to the case of Partin v. Commonwealth, 140 Ky. 146, 130 S.W. 968, as authority for this contention. A reading of the opinion in that case, however, will show that this court expressly determined that the language in the indictment then being considered, which was almost identical with that being here considered, did not charge two offenses, but charged only the one offense of selling intoxicating liquors in violation of the local option law. The opinion cites and quotes from the case of Hyser v. Commonwealth, 116 Ky. 410, 76 S.W. 174, 25 Ky. Law Rep. 608, and the case of Commonwealth v. Dickerson, 76 S.W. 1084, 25 Ky. Law Rep. 1043, and then says:

"Under the authorities, and others which might be cited, it is evident that the indictment did not charge appellant with the offense prescribed in subsection 2 of section 2557b (that of furnishing liquor), for there is no charge that he procured for or furnished the liquor to Adkins for the purpose of sale of it in that or any other town or district, nor was there the slightest proof to that effect. Therefore, the court erred in directing the jury to find him guilty of the procuring for or furnishing to the witness, Adkins, the liquor. The indictment was sufficient to charge appellant with the offense charged in section 2557."

The furnishing of intoxicating liquors, in order to be an offense under section 2557b, subsection 2, must be a furnishing for the purpose of illegal sale in local option territory by the person to whom the liquors are furnished. There are no allegations in the indictment being considered conforming to the requirements of the statute which would make the furnishing an offense. The indictment, therefore, charged but one offense, that being the one denounced by section 2557, and it is therefore not subject to the criticism made to it and the demurrer thereto was properly overruled.

The use of the phrase "and furnish" in the indictment was clearly unnecessary and may be appropriately classed as harmless surplusage as far as the appellant is concerned. It resulted in the commonwealth charging him with an unnecessary and additional act in order to render him guilty, for the offense was complete if he sold the intoxicating liquors under the circumstances charged, without his doing any other act in the way of furnishing or otherwise. This character of surplusage does not harm the defendant in the indictment and will not render it bad on demurrer. Coe v Commonwealth, 94 Ky. 606, 23 S.W. 371, 15 Ky. Law Rep. 284; Commonwealth v....