Bray v. Com.
| Decision Date | 01 October 1946 |
| Citation | 302 Ky. 846,196 S.W.2d 725 |
| Parties | BRAY v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Clay County; Ray C. Lewis, Judge.
Burley Bray was convicted of unlawfully possessing whiskey unlawfully acquired and intended to be used unlawfully, in local option territory, and he appeals.
Reversed.
J. M Lyttle, of Manchester, for appellant.
Eldon S. Dummit, Atty. Gen., for appellee.
MORRIS Commissioner.
Appellant was charged with violation of KRS 242.230. The descriptive portion of the indictment alleges that 'Burley Bray did on the 13th day of May, 1946, in the county and state aforesaid, and within 12 months of the finding of the indictment, unlawfully possess alcoholic beverages unlawfully acquired and intended to be used unlawfully to-wit; one pint of red whiskey, in local option territory.'
A trial resulted in a verdict of guilty; a fine of $50 and 30 days' imprisonment, and judgment was entered accordingly. Appellant moves for appeal and that the judgment be reversed, because (1) The indictment fails to charge a public offense; (2) The court erred in not sustaining appellant's motions made at the close of the evidence for a verdict in his favor, because of failure of proof and deficient indictment.
The chief of police of Manchester testified that he arrested Bray because he was drunk, and after his arrest searched him and found three-fourths of a pint of red whiskey. A fellow policeman testified likewise. Bray admitted that the policeman took from him nearly a pint bottle of whiskey. He said that he had recently gone to Hamilton, Ohio, to get a job, but due to the strike situation he failed and started home. He stopped in Lexington, Kentucky, and 'feeling bad,' he bought the whiskey from a licensed liquor store; he said he had no intention to sell it, and, as brought out on cross-examination, he bought it to drink, and drank most of it. This was all the evidence.
The assistant attorney general frankly concurs in appellant's contention that the judgment should be reversed, because of the faulty indictment and proof showed that the liquor was not possessed for the purpose of sale, barter or transportation, but for personal use after being lawfully acquired, and we concur.
The statute under which the indictment was drawn provides 'No person shall possess any alcoholic beverage unless it had been lawfully acquired and is intended to be used lawfully * *...
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Noble v. Com.
...for sale. We have held that an accusation of mere 'illegal possession' in dry territory is no charge of a crime. See Bray v. Com., 302 Ky. 846, 196 S.W.2d 725; Baker v. Com., 284 Ky. 92, 143 S.W.2d 842. Without an allegation that the liquor was possessed for sale (or for some of the other i......
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Holbrook v. Com.
...in local option territory does not constitute an offense. Roberts v. Commonwealth, 284 Ky. 31, 143 S.W.2d 856; Bray v. Commonwealth, 302 Ky. 846, 196 S.W.2d 725; and Sims v. Commonwealth, 308 Ky. 281, 214 S.W.2d We have also held that it is not a criminal offense to transport alcoholic beve......
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Hicks v. Com.
... ... offense under the statute, and follows the form and substance ... set out in Sec. 27 Criminal Code of Practice. A warrant does ... not have to meet the same standards required of indictments ... Kendall v. Com., 202 Ky. 169, 259 S.W. 71; ... Bitzer v. Com., 141 Ky. 58, 132 S.W. 179; Bray ... v. Com., 302 Ky. 846, 196 S.W.2d 725 ... [224 S.W.2d 917] ... The ... argument that all testimony was incompetent because there was ... no valid warrant needs no further discussion. It is argued, ... however, that the testimony of several witnesses who ... testified ... ...
- Bray v. Commonwealth