Cartwright v. Com.

• Decision Date: 10 October 1922
• Parties: CARTWRIGHT v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

244 S.W. 55

196 Ky. 6

CARTWRIGHT v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 10, 1922

Appeal from Circuit Court, Warren County.

John F Cartwright was convicted of having in possession an illicit still, and he appeals. Reversed and remanded.

N. P Sims, of Bowling Green, for appellant.

Chas I. Dawson, Atty. Gen., and T. B. McGregor, Asst. Atty. Gen., for the Commonwealth.

HURT C.J.

The appellant, John F. Cartwright, was indicted for a violation of section 2554d1, Ky. Stats. 1922 Edition, which is an act of March 29, 1918. The offense of which the indictment accused him occurred, if at all, before the enactment of the general prohibition statute of 1922, which went into effect on March 22, 1922, and after the enactment of the prohibition act of 1920, which became effective July 1, 1920 (Laws 1920, c. 81).

The indictment charged the commission of several different offenses, among which were unlawfully buying, bargaining, selling, loaning, having in possession, owning, and operating an illicit "moonshine" still, and aiding, abetting and assisting in such operation, and harboring a person in the operation of an illicit or "moonshine" still. As a matter of course, the indictment was properly subject to a demurrer as violative of the provisions of section 126, Criminal Code of Practice, and a demurrer was seasonably interposed. Section 168, Criminal Code, provides that if an indictment improperly charges more than one offense, the attorney for the commonwealth may dismiss all but one and thereupon the demurrer shall not be sustained upon the ground that the indictment charges more than one offense. The record recites that the proceedings in reference to the demurrer occurred in the following sequence: The demurrer was sustained, thereupon the attorney for the commonwealth elected to prosecute the appellant under the indictment for the offense of unlawfully having in his possession an illicit or "moonshine" still, and dismissed the other offenses charged therein, and asked the permission of the court so to do, and same was granted by the court over the objection of appellant. The latter then demurred to the indictment containing as it did the one offense of unlawfully having in possession an illicit or "moonshine" still. This demurrer was overruled. The appellant now insists that the court erred to his prejudice in not dismissing the indictment in toto, when the demurrer was sustained, and in permitting the election to be made after the demurrer had been sustained; that if an election was desired it should have been made before the demurrer was sustained, as after that time the indictment was invalid and a prosecution could not be had under it for anything charged in it. The recited actions of the court and the attorney for the commonwealth all occurred at the same time, and the effect of the rulings of the court were to sustain the indictment when the election was made and the other offenses dismissed, and the same result was attained as if the court had refrained from entering the order sustaining the demurrer until after the election was made and the other offenses dismissed, and then formally overruled the demurrer. It must be admitted that the logical course to have pursued would have been for the attorney for the commonwealth to have made his election and dismissed the other offenses, and this would have left a good indictment to which the court should have then overruled the demurrer; but, under the circumstances, to hold that the action of the court was fatally defective and prejudicial to appellant would be extremely technical, and not justified by the canons of common sense, as the end in view prescribed by the Code which could be attained was attained by the course pursued, although somewhat irregular, but the action of the court was in no wise prejudicial to the rights of appellant.

The demurrer to the indictment, after the election was made and the other offenses charged in it had been dismissed, was not error. Unlawfully having in possession an illicit or "moonshine" still was made a public offense by the act of 1918, and so far as it created a public offense out of an act of that kind, it was not repealed by the act of 1920. The latter act did not by its terms necessarily supersede the act of 1918, so far as the act of 1918 made it unlawful to have an illicit or "moonshine" still in possession, and the offense for which appellant was indicted appears to have occurred before the effective date of the act of 1922.

It is also insisted that the court erred to the prejudice of his substantial rights in not sustaining the motion of appellant to direct a verdict of acquittal at the close of the evidence for the commonwealth, and at the close of all the evidence, and failing to properly instruct the jury as to the entire law controlling the issues of the case.

(a) The evidence proved that the appellant was a merchant tinner in the city of Bowling Green, and carried in his stock regularly, sheet copper, coiled copper pipe and containers of various kinds and sizes, oil cans and cans for cooking, and was assisted in the conduct of his business by a clerk and several workmen, who did for customers such work, in the preparation of vessels and other articles connected with the trade, as is usually performed by persons in that line of business, and without specific directions in each case from the appellant, but acting by his general authority as being within the scope of their employment. The commonwealth's attorney...