Combs v. Com.

• Decision Date: 10 February 1905
• Citation: 84 S.W. 753,119 Ky. 836
• Parties: COMBS v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

84 S.W. 753

119 Ky. 836

COMBS v. COMMONWEALTH.

Court of Appeals of Kentucky.

February 10, 1905

Appeal from Circuit Court, Knott County.

"To be officially reported."

Henry Combs was convicted of selling liquor without a license, and appeals. Reversed.

R. L Greene, for appellant.

N. B Hays, Atty. Gen., and C. H. Morris, Asst. Atty. Gen., for the Commonwealth.

HOBSON C.J.

Appellant was indicted in six cases for selling liquor without a license in the county of Knott. He was found guilty in each case, and his punishment fixed at a fine of $100. The six indictments were returned into court on the 20th or 21st day of July, 1904, and were tried on the same day they were returned. The defendant entered a demurrer to the indictment in each case, which was overruled, and the correctness of this ruling is the only question to be determined on the appeal.

The indictments are, in substance, all the same, with the exception of the name of the person to whom the sale was made. One of them, which may be taken as a sample of the others, is as follows: "The grand jury of Knott county in the name and by the authority of the commonwealth of Kentucky, accuse Henry Combs of the offense of unlawfully selling spirituous liquor without license so to do, committed as follows: The said defendant, on the 18th day of July 1904, in the county and circuit aforesaid, did unlawfully sell spirituous liquors to Bob Thacker without a license so to do. A former indictment for said offense filed on the 13th day of November, 1903, has been stolen and cannot be found against the peace and dignity of the commonwealth of Kentucky." The rule is that an indictment must show on its face, where an ordinary misdemeanor is charged, that it was committed within 12 months before the finding of the indictment, unless it is in lieu of a former indictment, and then it must show that the offense was committed within a year before that indictment was found or the prosecution was begun. In Williams v. Commonwealth, 37 S.W. 680, 18 Ky. Law Rep. 666, the court said: "Section 129, Cr. Code, is as follows, to wit: 'The statement in the indictment as to the time at which the offense was committed is not material further than as a statement that it was committed before the time of finding the indictment, unless the time be a material ingredient in the offense.' The offense with which the defendant is charged is a misdemeanor, and, unless the indictment was returned within twelve months after its commission, the statute of limitation operates as a bar to the prosecution. Therefore the time is a material ingredient in the offense." In Stamper v. Commonwealth, 102 Ky. 36, 42 S.W. 915, the court again said: "Another objection is made on account of omission of the formal statement that the alleged offense was committed within twelve months before the indictment was found. The reason for requiring that statement in an indictment for a misdemeanor is that the plea of limitation...