Com. v. Howe

• Decision Date: 20 September 1895
• Citation: 32 S.W. 133
• Parties: COMMONWEALTH v. HOWE.
• Court: Kentucky Court of Appeals

32 S.W. 133

COMMONWEALTH v. HOWE.

Court of Appeals of Kentucky.

September 20, 1895

Appeal from circuit court, Harrison county.

"Not to be officially reported."

George Howe, indicted for the illegal sale of intoxicating liquors, demurred to the indictment. From an order sustaining the demurrer, and dismissing the indictment, the commonwealth appeals. Affirmed.

Wm. J. Hendrick, for the Commonwealth.

GUFFY, J.

On the 28th February, 1894, the grand jury of Harrison county returned against George Howe the following indictment: "The grand jury of Harrison county, in the name and by the authority of the commonwealth of Kentucky, accuses George Howe of the offense of selling liquor unlawfully in precinct No. _____, Harrison county, without license, unlawfully committed as follows, to wit: The said George Howe, on the _____ day of August, 1893, in the county and state aforesaid, and before the finding of this indictment, did unlawfully and illegally sell, traffic, barter, furnish, and deliver to George Beagle spirituous liquor, to wit, whisky and mixtures thereof, in a less quantity than a quart, in precinct No. 4, or Berry, in Harrison county, and without any license or authority to sell or vend liquors,-contrary to the statutes made and provided, prohibiting the sale of liquors in said precinct, against the peace and dignity of the commonwealth of Kentucky." At the February term, 1895, the demurrer of the defendant to said indictment was sustained, and the indictment dismissed; and from that judgment the appellant prosecutes this appeal.

It seems from the language of the indictment that it was intended to charge the appellee with the violation of some special law applicable to Berry precinct. In other words, it was a prosecution under the local option law supposed to be in force in said precinct; but the indictment failed to show that the local option act had been accepted and ratified by the people as prescribed in said act, and was, therefore, insufficient. See case of Com. v. Boyd (Ky.; Sept., 1895) 32 S.W. 132. Judgment is affirmed.