Com. v. Louisville & N.R. Co.

• Decision Date: 22 September 1910
• Citation: 140 Ky. 21,130 S.W. 798
• Parties: COMMONWEALTH v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

130 S.W. 798

140 Ky. 21

COMMONWEALTH v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

September 22, 1910

Appeal from Circuit Court, Lee County.

Louisville & Nashville Railroad Company having been indicted for delivering intoxicants in prohibition territory, the indictment was quashed, and the Commonwealth appeals. Reversed, with directions.

James Breathitt, Atty. Gen., and Tom B. McGregor, Asst. Atty. Gen for the Commonwealth.

Benjamin D. Warfield, Chas. H. Moorman, and Wallace & Harriss, for appellee.

CARROLL J.

The appellee company was indicted under section 2569a of the Kentucky Statutes (Russell's St. § 3641), reading "It shall be unlawful for any person or persons individual or corporation, public or private carrier to bring into, transfer to other person or persons, corporations, carrier or agent, deliver or distribute, in any county, district, precinct, town or city, where the sale of intoxicating liquors has been prohibited, or may be prohibited, whether by special act of the General Assembly, or by vote of the people under the local option law, any spiritous, vinous, malt or other intoxicating liquor, regardless of the name by which it may be called; and this act shall apply to all packages of such intoxicating liquors whether broken or unbroken: Provided individuals may bring into such district, upon their person or as their personal baggage, and for their private use, such liquors in quantity not to exceed one gallon; and provided, the provisions of this act shall not apply to licensed physicians or druggists, to whom any public carrier may deliver such goods, in unbroken packages, in quantity not to exceed five gallons at any one time." The lower court sustained a demurrer to the indictment upon the ground that it failed to charge that the company did not come within the proviso that "the provisions of this act shall not apply to licensed physicians or druggists, to whom any public carrier may deliver such goods, in unbroken packages, in quantity not to exceed five gallons at any one time."

It is the contention of the commonwealth that as the exception is not a part of the paragraph of the statute that creates and describes the offense, but is set out in a proviso as well as in a new paragraph, it was not necessary that the indictment should state that the accused did not come within the exception or to negative the proviso. There is some confusion in the authorities upon the question when it is necessary for the indictment to charge that the person accused does not come within a saving clause of the statute under which the indictment is returned, and many of the distinctions made are difficult to understand. But the general rule and the one prevailing in this state is that, if the exception is contained in the sentence or paragraph of the statute that creates and describes the offense, then it must be negatived in the indictment; but if the exception is not found in the sentence or paragraph that creates and defines the offense but is contained in a separate section or in a distinct proviso or paragraph, it is a matter of defense for the accused, and it is not necessary that the indictment should charge that he did not come within the exception. Commonwealth v. Kenner, 11 B. Mon. 1; Commonwealth v. McClanahan, 2 Metc. 8; Commonwealth v. Bierman, 13 Bush, 345; State v. Abbey, 29 Vt. 60, 67 Am. Dec. 759; Bishop's New Criminal Proced. § 331 et...